Category Archives: Coke

Maritime maths: ‘within the four seas’

Ahoy there!

Today’s papers include a report that those who know about these things have decided to designate the waters around Antarctica an ocean (as opposed to just ‘the waters around Antarctica’). I cannot comment on the geographical rights and wrongs of this,[i] and, looking at it in terms of eco-systems and current patterns etc., I have no doubt it makes sense, but it feels a rather odd thing, doesn’t it, splitting up water into separate named areas, as if it they were discrete, borderable, landmasses? This designation of separate oceans or seas has resonances[ii] with one aspect of my recent research into the law of adulterine bastardy.

Until the twentieth century, there was some legal relevance in knowing whether or not somebody was a run-of-the-mill ‘bastard’ or an ‘adulterine bastard’. The latter designation was used for a child  born to a married woman, but not the child of her husband. The law sometimes had to sort out disputes in which a wife/widow alleged that the child was that of her husband, but somebody else (the husband or an alternative heir, perhaps) claimed that the child had been fathered by somebody else. Just how this was to be done changed over time, but, for several centuries, roughly from the fourteenth century to the early eighteenth century, a key question in legal process around this matter was whether or not the husband had been ‘within the four seas’ at the relevant time for conception of the child.[iii] If he had, he was presumed to be the father in most cases. The question which arose for me, when I came across this criterion, was ‘which seas do we mean, then?’. Presumably the Channel and the North Sea are reasonably easy (if we ignore the Isle of Wight, Scillies and Channel Islands), but does the western ‘sea’ bring Ireland into the equation or not, and where on earth is the northern ‘sea’ (have we forgotten that the border with Scotland is a little bit on the landy side?). If we factor in the whole of the area controlled by the king of England, that might include parts of modern France as well, for much of the relevant period.

There is some discussion relevant to the issue in early modern sources. In relation to jurisdiction, Selden interprets ‘Within the Kingdom’ as ‘within the Southern, Eastern and Western Seas’ and, on the vexed question of the ‘northern sea’ writes of  ‘That Northern Sea which washeth both sides of that neck of land whereby Scotland is united to England’. (which may not be the most practical of borderlines). and ‘clarifies’ this as ‘within the outmost bounds of the English Empire in those four Seas, or within the opposite shores of the Eastern and Southern Sea or Ports belonging to other Princes, and within the bounds of the Northern and Western Sea, which indeed are to be bounded after another manner ; but yet to be bounded : that is accordirng to the extent of possession Westward beyond the Western Shores of Ireland, and by the first beginning of that Sea, which is of the Scottish name and jurisdiction’. [iv] He notes a late fourteenth century case in which somebody tried and failed to make the argument that Scotland itself was ‘within the four seas’ – which I must track down.[v] It may, in fact, have received a slight ‘unionist’ twist in the minds of Scots at least, in the nineteenth century – one treatise at least, while stating that it does not have great force in Scots law, implies that the common law test relates to ‘residence of both parents within the islands of Great Britain’.[vi]

By this time, however, English law had moved on from relying so heavily on the ‘within four seas’ formulation. Why? Well I am sure that there are various reasons, including some of the odd results which might be produced if the presumption was given the sort of weight sometimes suggested. I think there might have been another factor too. Coke, perhaps deciding that there were serious practical problems with the whole maritime delimitation issue, decided to interpret the problem away: stating that it just meant ‘within the kingdom of England and the dominion of the same kingdom’.[vii] This represented a  move from geography to political control. It may also have contributed to the decline of the concept. Coke’s work, of course, came at a time when England and Scotland were beginning their period of global attempts at colonisation, and  a criterion and a test which might be interpreted as a presumption of legitimacy even when husband and wife were on different sides of the Atlantic was probably destined to be [wait for the maritime image …] jettisoned.

 

GS

12/6/2021

 

[i] (I stopped geography at 16 and last memory of it is of a fairly major error in the map-work exam, in which none of the blue had been printed on the paper, which made it rather hard to discuss bodies of water, as required …)

[ii] ‘Sounding the depths’ is hinted at here, you see – this is high literature …

[iii] This expression also occurs in some procedural matters, at an earlier time – I have not investigated this yet. See, e.g., 29 SS, 225; 113 SS 138; 18 SS, 234.

[iv] John Selden, Of Dominion (1652)  387.

[v] p. 388.

[vi] James Fergusson, Treatise on the Present State of the Consistorial L in Scotl&: With Reports of Decided Cases (Edinburgh: Bell & Bradfute., 1829), 199.

[vii] Co Litt 107a

Photo by Nathan Dumlao on Unsplash

Coke fanboys and a cheer for F. Pollock!

I recently had occasion to go over the report of Bebb v. Law Society [1914] Ch. 286 (woman wants to be solicitor; not allowed to; takes legal action; loses, because obviously women can’t do such things – they should know their place), and, apart from its steam-from-ears-inducing unfairness,  it has some interesting material for those of us who are not fans of Sir Edward Coke (some might find the words ‘over-rated ruff-wearing misogynist’ spring to mind – I could not possibly comment).

On the depressing side, it is an example of just how ludicrously deferential judges of this period were to Coke: even when he was citing the dodgy Mirror of Justices. Cozens Hardy MR at 293, ‘[T]he opinion of Lord Coke on the question of what is or what  is not the common law is one which requires no sanction from anybody else …’ while Swinfen-Eady LJ, at 296 goes with ‘It is said the authority of the Mirror is impugned. But the authority of Lord Coke is not …’ and Phillimore LJ 298 ‘Lord Coke … is only a witness, no doubt, as to the common law, but he is a witness of the highest authority’. Creepy, craven stuff. Still, I suppose the deification of Coke meant there was no need to do proper Legal History research.

Pollock, editor of the Law Reports, however, had Coke’s number, noting in a footnote that his citation was incorrect and that there was some corrupt spelling (fn on  p. 292) and in a footnote on p. 295 that ‘Coke, according to his frequent habit, felt bound to support his living knowledge of  practice by citing an apocryphal authority’. Quite right too, F.P.

All of which has left me wondering:

(1)    When did the Coke-idolisation thing end’; and

(2)    What is the most Coke-worshipping statement in a law report? I will be looking out for this from now on.

Coke’s Marriage and Treatment of his Wife and Daughter

Those writing about Coke have generally given him a rather easy ride in relation to his treatment of his wife and daughter. It is hard not to find his ‘gold digging’ matrimonial conduct and his swift and secret second marriage anything other than discreditable and distasteful, but Baker’s introduction goes no further than saying that he ‘later had cause to regret’ i: Baker, Introduction to English Legal History, 4th edn 2002, 480t). No mention of the whole abduction of daughter to force her into obviously unsuitable marriage for his advancement in the favour of important people …

‘The second Mrs Coke’, a.k.a. Lady Elizabeth Hatton is subject to straightforward, and deeply gendered, insult elsewhere: being called a ‘harridan’ in Barnes and Boyer,  Shaping the Common Law from Glanvill to Hale 1188-1688 (Stanford CA, 2008) p. 120. The abduction of his daughter is mentioned here, at p. 127.  but there is not any real criticism and nothing on the lack of suitability of the groom.

Mephitic metaphor

I am not sure we really want the mental pictures conjured up by the idea of the common law as Coke’s ‘jealous mistress’ [A.D. Boyer,  Sir Edward Coke and the Elizabethan Age (Stanford UP 2003), 32. There are all sorts of dubious metaphors about the common law, or justice, as a woman, but does it need to be a ‘mistress’, with all that that imports, and does it need to assume that there is a recognisable, accepted idea of ‘the jealous mistress’. Just unnecessary.

 

 

 

 

 

Another triumph of legal science from Sir Edward Coke: the Great Lady and the Baboon

Despite his high reputation, there is a lot not to like about Coke (gold-digger, involvement in some very abusive trials and persecutions,  tendency to misrepresent and mis-cite medieval cases …). It is, therefore, always satisfying to be able to point out his grosser follies in the field of ‘legal fake news’. They don’t come much grosser than his much-quoted tale of the Great Lady and her sexual relationship with a baboon.

This comes in his discussion of buggery. [3 Co. Inst. 59] From buggery, he goes on to bestiality (grudging admission that this is justified by the statute he is discussing, which also does so), and this is illustrated by the story of the Great Lady who manages to become pregnant by a baboon. Coke places this some time before the passing of Henry VIII’s act against buggery  [25 Henry VIII]. Neither the lady nor the baboon is named, and it is not clear whether a human-baboon baby was supposed to have been produced. Obviously this is biological nonsense, and it looks as if Coke is caught out either making things up or not checking his plea rolls to confirm the facts. Nevertheless, it is quoted over and over again, without any doubt being cast upon the tale – such was his canonisation.  [E.g. in Anon., A Treatise of Femes Coverts or the Lady’s Law (London, 1732), 52; and there are examples at least into the 1820s].

If it is not absolute fabrication, the story might have its origin in some very unfortunate and misunderstood birth of a very disabled baby, given a back-story blaming the mother. We know such tales were told. If it is a fabrication, that fits in all too well with Coke’s striking, and sadly influential, misogyny, which damaged women’s chances of improving their legal position for centuries after his death: cases on areas including dower and the right to practise law frequently cited Coke to the disadvantage of women. And yet this was a man who alleged that a woman and a baboon could conceive a baby.

The anti-Coke backlash starts here!