Search Results

This chapter discusses the development of the English concept of search and seizure from 1642 to 1700. During this period, the English moved beyond the concept of illegitimate search and seizure to identifying the kinds of searches and seizures that were illegitimate. Although English thinkers continued to differ on many aspects of search and seizure, Sir Edward Coke placed the general warrant at the center of the emerging debate on what is now called “unreasonable searches and seizures”. By 1700, many Englishmen assumed not only that some kinds of search and seizure were unreasonable but that general warrants were the foremost kinds that were so.

This chapter focuses on the English roots of the general warrant clause of the Fourth Amendment. Between 1642 and 1700, the general warrant lost its legitimacy in the writings of England's opinion makers but retained its legality in the statutes and policies of lawmakers even though the makers of law and opinion were often the same. Yet this paradox should not obscure a massive negative shift in public attitudes towards general warrants as the salient event respecting search and seizure in the England of this period. This shift contributed a major pillar to the Fourth Amendment's specific warrant clause.

Chapter 10, on political epigrams, examines the dynamics of political satire in manuscript poetry and the limits of political comment in printed epigrams books, with a special focus on Thomas Bastard’s Chrestoleros. Certain moments of intense political controversy often provoked numerous topical epigrams and individual prominent political figures were often the subject of libellous attack in the genre. The chapter offers an extended of case study of epigrams on the life and career of the prominent legal and political figure Sir Edward Coke. Many of these were savagely partisan, but the final part of the chapter turns to epigrams by Robert Ayton, Richard Corbett and George Herbert that were nuanced and stoic in their political explorations.

Analyzing William Shakespeare’s Measure for Measure as the paradigm for theaters of pardoning, this chapter examines the relationships among judgment, pardoning and sovereignty in the play. It posits that Measure for Measure relies on a judicial model of pardoning and at the same time pits a more bureaucratic, institutional form of judgment against a vision of judgment as emanating from a sovereign decision on both the law and its application. The chapter further explains the connection between the institutional form of judgment staged in Measure for Measure and the work of early modern jurist Sir Edward Coke, who promoted a form of common law that he suggested derived from ancient Greek sources rather than the inheritance of Roman law from the Norman conquest. Drawing on this link with ancient Greece, the chapter then concludes with a comparison between Aeschylus’s Oresteia and Measure for Measure, contrasting both their genres and visions of justice.

In the early 17th century, Sir Edward Coke (1552-1634) in his Institutes and Reports gives some treatment of incorporeal rights and prescriptions, especially in relation to commons and fisheries; but Coke’s main concern is with tenures and estates: with title to land, not use of land. By contrast, Sir Matthew Hale (1609-76) and Sir William Blackstone (1723-80) provided detailed and systematic treatments of the rights of enjoyment incidental to land ownership. A justifiable claim can be made that these writers, Blackstone in particular, laid the foundations for the 19th-century law of land and water use. Here Blackstone, like Coke, was cited by the judges in leading cases as a direct authority in the search for right answers. This chapter reconstructs these modern institutionalists’ schemes of property and water law, which in turn reveals much of their legal technique and ideology.

This chapter examines three tracts written a few years before and after James I’s accession to the throne of England by the civil lawyer and historian, Sir John Hayward: The First Part Life and Raigne of King Henry the IIII (1598); a reply to Robert Persons entitled An answer to the first part of a certaine conference, concerning succession (1603) and A Treatise of Union (1606). These differ in their manner of presentation for reasons almost certainly related to Hayward’s perception of the interests of the patrons whose favour he wished to attract, Robert Devereux Earl of Essex and the new King. But it is argued that they reflect similar concerns with the construction and maintenance of a cohesive royal state over a linguistically diverse realm comprising not only English but Welsh, Irish and eventually Scottish subjects. Hayward sees royal authority as an indispensable unifying bond that holds in check personal ambitions and ethnic hatreds that would otherwise dissolve the state, and he is consistently interested in both ideas and political processes that tend either to weaken or reinforce this cohesive force.

Chapter 1 explores the myriad legal understandings of subject status that coexisted in the seventeenth and eighteenth centuries. It revisits the landmark case of Calvin v. Smith, among others, in order to examine notions of allegiance, obedience, and protection that cast a long shadow over subsequent interpretations of subject status. Many of the questions left unanswered by this case, particularly those relating to the specific nature of allegiance and protection, led to further definitions and legal quandaries. The numerous treaties, opinions, and correspondence in which subjecthood was also discussed illuminate the importance of local factors and agents in shaping the multivalent legal ideas available to contemporaries.

Sir Edward Coke, writing in 1628, mentioned three kinds of estoppels: by matter of record, by matter in writing, and by matter in pais (estoppel that arises in the country and need not involve writing). What Coke calls ‘estoppel by matter of record’ is often now called estoppel per rem judicatam, which can be roughly translated as ‘estoppel because the court has already decided’. It is the rule that when a question has once been litigated, the parties cannot bring it back to court for another try. The other two categories listed by Coke also remain vital parts of the law; they are the basis of what are called the ‘formal estoppels’. They are triggered by the actions or statements of the estopped person, but they sit a little uneasily beside the vast body of law which grew out of them and which behaves in a rather different way.

This chapter explores the origins and importance of the English Habeas Corpus Act of 1679. In the century leading up to the Act, royal command commonly sufficed as cause for detention or, at the least, precluded judicial inquiry into detention. But the privilege associated with the Act limited dramatically the causes for which the executive could legally detain persons who could claim the protection of domestic law. Specifically, the Act required that one be charged criminally and proceeded against in due course, even in times of war, and it rejected outright the proposition that the royal command, standing alone, would suffice as lawful cause to detain. Accordingly, the Act was part of the ongoing struggle between Parliament and the Crown that dominated the better part of the seventeenth and eighteenth centuries. This chapter chronicles the decades in which the seeds of the association of habeas corpus with individual liberty were sown.

This chapter serves as an introduction to the book’s arguments about corporations, reading More’s Utopia alongside Calvin’s Case and the case of Sutton’s Hospital to argue for the importance of the idea of fiction to political philosophy and the idea of a constitution. The chapter also surveys medieval and early modern definitions of corporations, describes the major arguments of pluralist political theory that guide the book, and formulates five major ontologies for corporations that were typical of the early modern period: mystical, mimetic, representational, material, and compositional. It concludes by offering a definition of the corporation that situates it among and across the domains of law, philosophy, and literature.

This chapter begins with Coke’s and Selden’s speeches on liberty of person in the wake of the Five Knights’ Case (1627). Here civil law and supra-legal principles, or the national and the universal, converge, in a way running parallel to the period’s engagements of the romance tradition, which historically claims common cultural ground for Western Christendom but becomes dominated in the seventeenth century by narrower concerns. This shift is visible in John Barclay’s Argenis, effecting an unlikely marriage of romance and raison d’état. That proves to be an influential model in the prose romances of the 1650s—considered most closely are Theophania and Sir Percy Herbert’s Cloria and Narcissus. In a way recalling Arendt’s remarks on nomos, likely a response to Schmitt, these romances of the 1650s solidify the social ties of a disempowered elite while displaying a unique and fleeting posture of openness on the question of sovereignty.

The class of words most likely to be overlooked in a title is the preposition. While this chapter briefly touches on of, as well as to and for, as examples of the mighty unsung and inversely proportional work that prepositions do in language, the focus in this chapter is on the cognitive contribution of the little word in. The chapter posits that an English language convention arose, and now has largely fallen out of use, for dealing with the formidable, yet beautiful, complexity of the meaning of property. The burden of the argument is to show that while this convention lasted for only 500 years, less than 1% of the time our modern species has roamed the planet, it provides an insight into how humans universally and uniquely cognize property. And the argument is this: Humans locate the meaning of property within a thing. Property is contained within the thing.