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The Fourth AmendmentOrigins and Original Meaning 602 - 1791$

William J. Cuddihy

Print publication date: 2009

Print ISBN-13: 9780195367195

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780195367195.001.0001

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The General Warrant in Intellectual and Political Perspective, 1642–1700

The General Warrant in Intellectual and Political Perspective, 1642–1700

Chapter:
(p.129) Chapter 6 The General Warrant in Intellectual and Political Perspective, 1642–1700
Source:
The Fourth Amendment
Author(s):

William J. Cuddihy

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195367195.003.0006

Abstract and Keywords

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.

Keywords:   English law, general warrant, search and seizure, Sir Edward Coke

  • Thesis-Introduction 129

  • I. The Assault on General Warrants in Intellectual Perspective, 1642–1700 130

    1. 1. Forms of Search Warrants, 1642–1700 130

    2. 2. Advice on Search and Seizure in Legal Treatises, 1642–1700 132

  • II. The Assault on General Warrants in Political Perspective, 1642–1700 134

    1. 1. 1642–53 134

    2. 2. 1660–62 136

    3. 3. 1663 137

    4. 4. 1681–95 137

  • III. Sir Edward Coke and the Political Origins of English Hostility Toward General Searches and Warrants 140

    1. 1. Coke as a Searcher 140

    2. 2. Coke’s Experiences with Being Searched 140

    3. 3. Coke’s Evolution as a Civil-Libertarian 142

  • IV. Summary and Conclusions 145

THESIS-INTRODUCTION

In rejecting general searches and warrants, the Fourth Amendment embodied the extreme, not the norm, of English thought on search and seizure between 1642 and 1700. Although the amendment inherited an English antagonism toward general warrants, that antagonism did not typify the English attitudes toward search and seizure that prevailed when it originated. The volume of criticism that general warrants and promiscuous searches excited between 1642 and 1700 illuminated only one sector of thought concerning them. Other categories of evidence indicated that the English mind on those subjects was severely divided at that time, for general searches and warrants had even more supporters than detractors.

(p.130) Political expediency as well as ideas motivated the English critics of the general warrant between 1642 and 1700. Disparate groups ruled England then, but carte blanche searches served the interests of them all. For that reason, the general warrant’s dominance of the English law of search and seizure survived the firestorm of denunciation that enveloped the warrant after 1642. Indeed, the English of this period developed two minds on the general warrant, one which professed abhorrence and another, discernible from behavior, which manifested approval.

Between 1642 and 1700, in other words, the general warrant lost its legitimacy in the writings of England’s opinion makers but retained its legality in the statutes and policies of the realm’s 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. In retrospect, that shift contributed a major pillar to the Fourth Amendment’s specific warrant clause.

I. THE ASSAULT ON GENERAL WARRANTS IN INTELLECTUAL PERSPECTIVE, 1642–1700

English legal thinkers continued to champion general warrants and general searches after 1642, sometimes in the very treatises in which they repeated Sir Edward Coke’s reasoning against them.1 Indeed the legal literature of 1642–1700 was an arena for a contest of sorts between Michael Dalton, whose Countrey Justice introduced forms of promiscuous search warrants into the legal literature between 1618 and 1626, and Coke, whose Institutes spearheaded the movement against those warrants in 1644.2

I.1. Forms of Search Warrants, 1642–1700

Although both men were cited, Dalton, not Coke, was the decisive winner. Between 1641 and 1700, thirteen authors published eighteen legal manuals in fifty-nine editions for justices of the peace and constables, who then issued and enforced nearly all search warrants.3 Seven of those eighteen manuals contained search warrants, fifty-five of which (p.131) appeared 144 times in twenty-four of the fifty-nine editions. Every search warrant was general; not one was specific.4 The numbers misled, moreover, for all fifty-five warrants were copies or derivations of those that Dalton had pioneered, and they had only four applications: arresting felons, recovering stolen property, game poaching, and vagrancy. A warrant in William Sheppard’s manual of 1654 typified the lot. After declaring that ten sheep had been reported lost and were presumed stolen, Sheppard’s warrant observed that the unknown culprit was “suspected to lie hid in some one of the places or Parishes adjacent.” It then commanded all to whom it was addressed “to make diligent Search in (p.132) Suspected places with in your Parishes” for the felon and sheep. Local officials were further directed to arrest anyone of whom they had “just cause to suspect.”5

I.2. Advice on Search and Seizure in Legal Treatises, 1642–1700

The manuals without search warrants in them also teemed with instructions for promiscuous searches. Edmund Wingate’s Exact Constable of 1677, for example, told its readers that the customs laws of 1660–62 allowed them, during the daytime, to “force into any House” by a warrant and “enter into any House, Shop, Warehouse & c.” by a writ of assistance.6 George Meriton’s Guide for Constables, which appeared in eight editions between 1669 and 1685, contained similar advice and also told officers to “search the houses of persons suspected to have…[illegal hunting] dogs” and to “search in suspected houses and places” during the hue and cry.7

Caught between Dalton’s advocacy of general search warrants and Coke’s repudiation of them, most authors of legal handbooks voted for Dalton with their pens. Of the seven writers whose works displayed forms of search warrants, only two, Sheppard and John Bond, acknowledged Coke’s argument against general warrants.8 Bond tried to have it both ways, for he provided eight general search warrants, paraphrased Coke’s language against them, and yet nowhere mentioned the resulting inconsistency.9

At the other extreme, Sheppard perceived the tension between Dalton and Coke so acutely that he vacillated between them for decades. In 1641, three years before Coke’s thesis against general warrants appeared in print, Sheppard admonished constables in confident, authoritative language that “they may and they must, after a felony be done, either by or without…warrant…make diligent search for him that did it in such places…as they shall understand to be likely to finde him.”10 Nine years later, however, (p.133) Sheppard was not so cock-sure. Citing Coke, he cautioned readers that, practice notwithstanding, it was “doubtful” that a justice of peace could justify an arrest for felons on bare surmise before indictment “or break any mans house to search for a Felon or stollen Goods.” On the other hand, Sheppard also noted the contrary precedent in Dalton and added, hesitantly, that it “seems necessary at this Day.”11 In 1654, Sheppard was soundly back in the general warrant camp. Conceding that “Some have disliked” general search warrants and that “an unhappy use is oft times made” of them, he concluded that “common usage hath made…[them] justifiable at this day.”12 Nine years later, the pendulum reversed yet again, and Sheppard was once more warning against the issuance of any warrant “upon a bare surmise of Fellony…to break any mans house” for felons or contraband.13

Despite his ostentatious genuflections to Coke, however, Sheppard’s allegiance to Dalton and general search warrants never wavered in fact, for five forms of such warrants appeared fifteen times in his treatises between 1654 and 1672. Handwringing about general warrants aside, Sheppard never presented a single specific warrant in the six law books that came from his hand between 1641 and 1672.14

Much the same was true of Sheppard’s colleagues as well. The only concrete advocacy of specific warrants before 1700 did not appear in a legal manual but in a tract against the persecution of religious dissenters in 1680. Its author, Henry Care (or Carr), was not a lawyer but an enemy of the Catholic and Anglican churches. Care was not concerned with general searches or warrants per se and confined his argument for specific warrants to the narrow application of religious deviance.15

The ambivalence of English thinkers toward general searches and warrants extended to their most ardent critics. Michael Sparke, the defiant printer who invoked Magna Carta against the High Commission in 1629, later instigated a general search warrant against one of his competitors. When Sparke and another protested the importation of a foreign publication in 1635, the commission threatened to issue a warrant if the violations continued and, shortly afterwards, issued it, commanding “diligent search for the sayde books.”16

Although Coke’s Institutes condemned general warrants for felons and stolen merchandise, they elsewhere described privy searches for vagrants, which were no less general, as an ordinary feature of the law meriting no criticism.17 Even at its most extreme, the crusade against general warrants was selective, erratic, and incomplete.

(p.134) II. THE ASSAULT ON GENERAL WARRANTS IN POLITICAL PERSPECTIVE, 1642–1700

The dualism of the English mind toward general warrants after 1642 was only one of the anomalies respecting English search and seizure at that time. Not only were English intellectuals divided on the subject, their legal theories contradicted a legal reality that had not even begun to reject general warrants in favor of specific ones. Indeed, much of the assault on those warrants came down to politically self-interested rhetoric.

A closer look at the opposition to general warrants and the like reveals that changed political circumstances often changed opponents of the warrants into their sponsors. Parliament repeatedly condemned the general searches and warrants to which Parliamentarians had been subjected but enforced and enacted identical methods against Parliament’s enemies. In that context, the unifying thread in Parliamentary discontent with search and seizure was not that those procedures were general but that they included Parliament’s own as targets and operated without its sanction. The pivotal issue was not how general searches and seizures should be but which groups of political society should be subjected to them on the one hand and benefit from them on the other. Time and again, political figures and institutions deplored the searches, seizures, and arrests that they had endured only to inflict them on their opponents at the first opportunity.

II.1. 1642–53

The behavior of the Long Parliament furnishes a conspicuous example. Although that Parliament denounced searches of its members, condemned the general warrant against Burton, and punished Strafford for using one, it authorized a multitude of general warrants and searches. Scarcely a week before indicting Strafford in January 1642, the Commons cracked down hard on its opponents, first ordering public officers to search the houses of specific persons “and any other suspected places” and afterward commanding Northampton’s magistrates to search the house of Lord Vaux “and such other suspected Places…as they shall think fit…for Arms.”18

Such decrees led to searches as sweeping and horrific as any by the Star Chamber or High Commission. Intending “to search Malignant houses,” for example, over three hundred Roundhead troops descended on Hertfordshire, invaded the house of Sir John Winter because he was a Catholic, and found a cache of weapons.19 Still more arms had been expected, but Winter’s servants refused to disclose their location, even after their hands were held over lighted candles.20

More was yet to come as Parliament enacted several kinds of general searches between 1643 and 1653 that imitated those of the Tudor-Stuart period. First came excise and customs laws enforceable by general, warrantless searches and then a variety (p.135) of censorship ordinances with procedures of search inherited from those of the Star Chamber and High Commission.21 “The father of the excise” and of its promiscuous searches, moreover, was none other than John Pym, who had been the prime target of the king’s general search warrant for recalcitrant legislators only a year before.22 King and Parliament traded places of power, but an Englishman’s house was no more his castle under a Puritan Parliament that proclaimed it was than it had been under Stuart sovereigns who never bothered to make the claim.

Parliament’s use of Laud’s techniques to convict and execute him afforded further, ironical, testimony of the legislature’s continuing addiction to general techniques of search and seizure.23 In November 1642 and the following May, Parliament had the archbishop’s chambers at Lambeth and in the Tower of London ransacked. Books and papers were confiscated wholesale in fishing expeditions for evidence.24 Prynne, England’s paramount critic of promiscuous searches had reserved his strongest venom for those that Laud had inflicted on him.25 Yet Prynne reciprocated with a similar Parliamentary warrant that Pym, among others, had signed. Accompanied by ten soldiers, Prynne diligently searched the archbishop’s person and rooms in the tower for four hours on one occasion.26 Afterward, Laud sarcastically remarked, “how odious it was to Parliament, and some of themselves, to have the pockets of men searched.”27 The plunder included the prelate’s personal diary, twenty-one bundles of papers, and other books with an inventory three pages long. Denied access to the bulk of his papers, the archbishop protested that he could not present an effective defense. Eventually Laud followed Strafford to the scaffold.28

Members of Parliament enjoyed no immunity from similar treatment. In 1647, Lord Fairfax charged that eleven members of the lower house had conspired with the king. Denzil Holles, twice victim of prerogative searches, and John Maynard, one of their (p.136) leading opponents, were among the accused. The cabinets and papers of the eleven suspects and those of Charles I were searched, vigorously but fruitlessly.29

II.2. 1660–62

The conduct of the Reformation Parliament in 1660–62 counterpointed the Earl of Southampton’s reservations about the “vexations” that his warrants to customs officers had caused.30 Between June and August of 1660, the House of Lords issued more than a dozen general warrants of search and seizure to recover the property of peers that had been lost or dislocated during the Civil War. Lord Brudnell’s warrant, for example, empowered him and his servants “to make Search for any of his said Goods, Books or Household Stuff, of which kind soever, in all Places where he or they may have cause to suspect, any of the said Goods…to be concealed.”31

The Parliament of 1660–62 also continued Cromwell’s general excise searches and enacted general search warrants and writs of assistance for confiscating forbidden books, arresting political dissidents, and enforcing the customs laws.32 The Commons, (p.137) moreover, were as eager to sacrifice the sanctity of Englishmen’s houses in this legislation of 1662 as the Lords had been in issuing general search warrants to themselves in 1660. In objecting to the exemption of the houses of peers from general searches for malcontents under the Militia Act, Sergeant Charlton of the lower chamber stressed that commoners considered their houses to be castles no less than did the nobility. None-theless, he continued, the common folk “were willing to part with their Previlege…for the Public Safety.”33 A week later, the speaker of the house stated that dwelling houses were “those Places where we enjoy our greatest Comports [sic] and Securities.”34 For that very reason, he advocated the Hearth Tax, which exposed every dwelling in the realm to warrantless inspection, because so draconian a method of enforcement made evasion difficult.35

II.3. 1663

Responding to Parliament’s affirmation of general warrants, the Earl of Southampton evidently reconsidered his opposition to them. In 1663, he issued a warrant empowering a customs officer “to enter any ship, house, or place soever to search for [contraband],” and by 1688, the usual form of writ of assistance featured similar language.36

II.4. 1681–95

General searches were no less prominent in the Parliaments of 1681–95 that assailed Scroggs and repealed the Hearth Money and Licensing Acts. In describing Scroggs’ general warrants as “contrary to law,” the House of Commons really meant that they lacked its approval, for their language reflected the Licensing statutes that Parliament (p.138) had enacted repeatedly after the Restoration.37 The ultimate issue was Charles II’s attempt to circumvent the legislature by substituting general warrants from the King’s Bench for those in Parliamentary legislation that had lapsed repeatedly.38 Scroggs’s indictment and the vanishing of the Hearth Money and Licensing Acts terminated neither censorship nor promiscuous searches. The peers rejected the indictment of the chief justice. Though removed from the bench, Scroggs lived out his days on a comfortable pension.39 Within four years, Parliament had revived the Licensing laws and the same kinds of general warrants for which it had indicted Scroggs.40

Repeal of the Hearth Money law was, in effect, a legislative courtesy to William III that repeated his words against that statute in the midst of a torrent of general warrant and general search legislation.41 Parliament inserted a revived censorship act (1685) between its attack on Scroggs (1681) and Hearth Money (1688) that practically duplicated his methods of search and seizure.42 The statutory baggage of the Glorious Revolution contained not only the lapse of hearth money but also continuations of the excise, writs of assistance, and censorship as well as two poaching laws, all of which authorized warrantless searches or search warrants as general as any in previous English history.43 Between 1688 and 1695, still other promiscuous searches were (p.139) enacted to disarm Catholics, discourage counterfeiting, and collect the land tax that had replaced the hearth money law.44

The bottom line was not that English law produced no precedent against general searches after 1642 but that its disparate political masters produced many more concurrent precedents favoring them. The essential consideration was not an absolute but an equation of balances that preponderated toward the general warrant and equivalent warrantless methods. For every one of the many words and acts damning general warrants and their kin, many times as many laws and deeds emerged in their behalf.

Penn might well have cursed the general searches that Quakers had endured in 1670 when he had been put on trial for his religious beliefs.45 That did not prevent the issuance of yet another general warrant in 1689, against him, and the same pattern recurred endlessly.46

The political motivation for Parliament’s statements on procedures of general search and seizure, moreover, precluded any serious effort to eliminate those procedures categorically. Parliament’s actions against Strafford, Laud, Scroggs, Hearth Money, and censorship searches in 1695 all assumed the illegality of methods allowing an enforcer to arrest, search, and seize at his discretion. Each of those examples, however, attacked a single exercise of those methods, never the methods themselves, for the underlying goal was always to damage a political adversary, not to restructure search and seizure. The austerity of each such movement against general warrants and searches was apparent in its constitutive documents.

Likewise, neither the Privy Council order against blank warrants in 1631 nor Judge Rolle’s holding against general arrest warrants in 1648 mentioned general searches or general search warrants or controlled them in any way.47 Prohibiting warrants with blanks for the names of those arrested to be filled in later did not foreclose warrants with no blanks that allowed the bearer to search and arrest as he pleased. Nor did the administrative restrictions of 1682 seriously inhibit general searches by the customs service. As the documents of 1693 clearly stated, the commissions and writs of assistance that the guidelines of 1682 addressed remained in use and continued to sanction such (p.140) searches. That outcome was to be expected, as the requirement of 1682 that the writs be based on oath did not prevent their also being general.48

III. SIR EDWARD COKE AND THE POLITICAL ORIGINS OF ENGLISH HOSTILITY TOWARD GENERAL SEARCHES AND WARRANTS

Parliament’s quest for political dominance after 1642 and the resiliency of general search warrants in legislation, practice, and legal treatises only partly explain the eruption of opposition to those warrants. Another part of the explanation derives from the earlier political experiences of Sir Edward Coke, for he initiated the condemnation of general searches and warrants as one who had both enforced and endured them.

III.1. Coke as a Searcher

Coke’s emergence as an archenemy of promiscuous searches was ironic because he had once helped enforce a notoriously general search. In response to the Gunpowder Plot of 1605, the Crown had issued two proclamations ordering nationwide, general searches for the conspirators. Acting under the authority of those proclamations, Coke, who was then the attorney general, had personally inspected the chambers of the Catholic Tresham family in the Inner Temple and seized two incriminating books.49

III.2. Coke’s Experiences with Being Searched

Yet Coke knew the other side of the search process at first hand as well.50 In 1621, James I had him cashiered from the Privy Council, arrested, and imprisoned in a former kitchen, above the door to which some jester had written, “this room wants a cook.”51 (p.141) While the Crown’s legal officers interrogated Coke and denied him access to all books, other agents of the king entered his house in Broad Street and his legal chambers in the Inner Temple.52 Separate warrants from the council specified those places but commanded general searches and seizures within them. The officers were ordered “to make diligent search for all such papers and writeings as doe anie way concerne his Majestie’s serice” and “to open all such studies, clossetts, chests, trunkes, deskes, or boxes that you shall understaund or probably conceave” to be the repositories of evidence.53 Coke’s papers were hauled before the council and examined along with thirty-seven rare manuscripts, three of which he never recovered. No incriminating evidence was found, however, and Coke was freed after seven months.54

One of Coke’s speeches in the House of Commons on the Petition of Right of 1628, of which he was a leading architect, indicates that he recalled the ordeal of 1621 in a way that stimulated much of his later reasoning against general searches and warrants in The Institutes. 55 In the Commons, Coke cited the confiscation of his manuscripts and his interrogation as illustrating the need for what became the clauses against imprisonment without cause shown. Coke contended that if a man’s house could be searched while he was confined without being told the cause, “they will find cause enough.”56 When Dudley Digges objected that the proposed clauses “tied the King that never was tied,” Coke answered that not he but Magna Carta did so, and, as proof, he quoted the (p.142) same words of Article-Thirty Nine that he would later repeat in The Institutes as invalidating general search warrants.57 Use of that article against searches for retrospective evidence was evidently a stage in Coke’s development of it for use against general warrants. The experience of having been searched pervaded the interpretation that Coke fastened on Article Thirty-Nine.

III.3. Coke’s Evolution as a Civil-Libertarian

Coke’s knowledge of searching and being searched, moreover, had still deeper roots in the wider political contest between king and Parliament that culminated with the Petition of Right. Part of that contest, in turn, was an odyssey by Coke from judicial henchman of the Crown to champion of the rights of individuals and of Parliament against the Crown.

The search that Coke conducted during the Gunpowder Plot was but one element of a harsh Crown policy towards criminal suspects that he had enforced eagerly. After the search, Coke prosecuted one of the suspects with gross malice and prejudice. After haranguing the defendant in open court, Coke denounced his religion as heresy and invited the judges to extinguish even his family name by rendering his wife a widow and his children vagabonds.58 In so doing, however, Coke merely repeated the courtroom techniques he had used in 1603 against Sir Walter Raleigh, whom he had reviled with such epithets as “monster,” “Spider from Hell,” and “vile and execrable traitor.”59 No spectator in those courts would ever have guessed that this same Edward Coke would later defy the Crown and champion the rights of criminal defendants.

Even before railroading Raleigh to a death sentence, however, Coke had paradoxically demonstrated a civil-libertarian side. As early as 1589, he had asserted a client’s (p.143) right against self-incrimination in court.60 Furthermore, as a chief justice of the courts of both Common Pleas (1606–13) and King’s Bench (1613–16), Coke made the common law a bulwark against royal caprice and a bastion of Englishmen’s rights.61 Quoting Bracton and citing Article Thirty-Nine of Magna Carta, Coke proclaimed that the king was “under God and the law” and so could not of himself make law.62 In open disregard of King James I, Coke subjugated the prerogative courts to those of the common law, denied that the High Commission could infringe the right against self-incrimination, and drove James to the brink of fits in Peacham’s Case (1615).63

Edward Peacham was an elderly minister who was indicted for treason and racked after the search of his study uncovered an allegedly seditious sermon that he had neither preached nor intended to preach. Although he was eventually convicted and condemned, many of the judges of King’s Bench, before which Peacham was tried while Coke was chief justice, doubted that his writings were treasonable. When James tried to intimidate the judges into giving separate, verbal opinions, Coke objected. After thirteen years of such judicial recalcitrance by Coke, the king lost all patience and dismissed him in 1616.64

(p.144) In 1613, James I had elevated Coke to the King’s Bench on the word of Sir Francis Bacon that the promotion would make him “turn obsequious.”65 Few predictions have proven more off the mark. Coke entered the House of Commons after his expulsion from the bench and engaged Parliament against the Crown no less effectively than he had engaged the courts. Time and again, Coke acted as one of the more painful Parliamentary thorns in the side of the first two Stuart kings.66 In 1621, Coke defended the authority of the Commons to impeach Bacon, James’s chancellor, and, citing Magna Carta, to debate foreign policy or “any Business of the Parliament,” all against royal wishes.67 Scarcely had Charles I succeeded his father in 1625 than Coke was urging his fellow legislators to withhold the king’s subsidy because of royal improvidence.68

Such goading of the Crown had a direct bearing on the search of Coke in 1621 and, thereby, on Coke’s thought regarding search and seizure. James I viewed Coke as an instigator of Parliament’s actions regarding Bacon and foreign policy, and the search of 1621 was direct and immediate retaliation. Damnation of the general warrant in The Institutes was Coke’s reply. Although The Institutes addressed only those general warrants that concerned theft and felons, an implicit assault on all such warrants was unmistakable.

The dying moments of Coke’s life poignantly illustrated the gap between the English practice of general search and seizure and the rights that Englishmen were coming (p.145) to believe they had against that practice. Coke and the manuscripts of his Institutes then endured the very kind of promiscuous search that those same Institutes had condemned.69

As Coke lay on his death bed, Charles I ordered an official to search his house and seize “all such papers and manuscripts as he shall think fit,” for many of those documents were deemed “of great consideration and weight.”70 Fifty-seven manuscripts were thereby seized, among them all four volumes of The Institutes in which Coke condemned such action.71 The booty was taken before the king, who personally broke open Coke’s trunks and inventoried the contents in his own hand.72 Similar directions were later issued towards Coke’s papers at the Inner Temple on grounds that they were “disadvantageous” to the Crown.73

IV. SUMMARY AND CONCLUSIONS

For three interlocking reasons, the English roots of the specific warrant clause of the Fourth Amendment were less in law than in legal theory and in the self-interested political motives of the theorists. First, the various acts against general warrants and searches never affected more than a few elements of the huge legal superstructure of such warrants and searches. Despite all the rhetoric and legislation against them, general warrants remained the orthodox method of search, for neither rhetoric nor legislation ever attacked the warrant comprehensively in all its applications. The theory and the law of search and seizure differed no less in 1700 than in 1600, for the theory had but slight impact on the law.

Second, articulate, self-conscious theory is but one index of thought. The legislation that Englishmen enacted and the forms of search warrants that they used indicated an approval of the general warrants and promiscuous searches that they professed to despise.

Third, much of this incongruity between functional and professed belief between 1642 and 1700 emanated from political self-interest, which was not only the driving motive for condemnation of the general warrant but a barrier to its abolition. The pattern of protest against and usage of the warrant tells the story clearly, for a list of its sponsors and critics would include many of the same names under different (p.146) political conditions. Laud, Prynne, Sparke, and Coke all condemned general warrants or searches at one point but either had used or would use them against their foes. Of greater significance, the same was true of Parliament, which consistently enacted and enforced general warrants against its enemies while damning those used against itself.

Notes:

1 For a discussion of the leading seventeenth-century manuals for justices of the peace, see: Larry M. Boyer, “The Justice of the Peace in England and America from 1506 to 1776: A Bibliographical History,” Library of Congress, Quarterly Journal, vol. 34 (1977), pp. 317–18.

2 “To Search for stolen goods,” Dalton, Justice (1618), p. 314. “A Warrant for a generall search for Rogues,” ibid., pp. 318–19. “A Warrant to search after a Robberie Committed,” ibid. (1626), p. 354. “A Hue and Cry after Robbers,” ibid., pp. 354–55. Coke, Institutes, vol. 2, pp. 45–47, vol. 4, pp. 176–77.

3 The surviving manuals, per Sweet and Maxwell’s Legal Bibliography (2nd ed.), pp. 223–36, The National Union Catalog, and the Wing compendium of English books, 1641–1700, are the following, in chronological sequence by author and date of earliest surviving edition:

Anonymous,

Complete Justice: A Manuall Or Analecta…Formerly Styled The Complete Justice (London, 1641)

Compleat Justice (1656, 1661, 1667). Richard Chamberlain, The Complete Justice (1681)

Michael Dalton,

The Covntrey Justice (6th ed., 1643, 1655, 1661, 1666, 1677, 1682, 1690, 1697)

William Sheppard,

Offices and Duties of Constables (1641)

Offices of Constables ([2nd ed.], 1641, 1652; 3rd ed., 165?; 4th ed., 1657)

Whole Office of the Country Justice of Peace (1650; 2nd ed., 1652; 3rd ed., 1656)

The Justice of Peace: His Clark’s Cabinet (1654, 1660, 1672)

New Survey of the Justice of Peace (London, 1659)

Sure Guide for His Majesties Justices of Peace (1663; 2nd ed., 1669)

Edmund Wingate,

The Exact Constable (2nd ed., 1660; [3rd ed., 1663]; 4th ed., 1677; 5th ed., 1680; 6th ed., 1682)

Justice Revived: The Whole Office of a Countrey Justice of Peace (London, 1661)

George Meriton,

A Guide for Constables (1669; 3rd ed., 1671; 4th ed., 1674; 5th ed., 1677; 6th ed., 1679; 7th ed., 1682; 8th ed., 1685)

R. Turner,

The Duty and Office of a High Constable (1672)

Henry Care,

English Liberties ([1680?], 1682, 1684, 1691, 1700)

Richard Kilburne,

Choice Precedents Upon All Acts of Parliament Relating to…a Justice of Peace (1680; 2nd ed., 1681; 3rd ed., 1685; 4th ed., 1690; 5th ed., 1694; 6th ed., 1700)

Joseph Keble,

An Assistance to Justices of the Peace (1683, 1689)

John Bond,

A Complete Guide for Justices of Peace (1685; 2nd ed., 1696)

Anonymous,

Compleat Constable (1692; 2nd ed., 1700)

Anonymous,

New Guide for Constables (1692)

William Brown,

Astraeae Abdicatae Restauratio, or Advice to Justices of the Peace (1695)

4 For a full list of the forms of search warrants in English legal treatises, 1642–1700, in the sequence outlined in the last footnote, see below, Appendix C-2.

5 “To all Constables and Tythingmen,” Sheppard, Justice of the Peace (1654), p. 20; repeated in ibid. (1660), p. 21 and (1672), p. 20.

6 Wingate, Exact Constable (4th ed., 1677), pp. 33 (first quote at same), 66–67 (second quote); repeated: ibid. (5th ed., 1680), pp. 31, 63–64; (6th ed., 1682), pp. 31, 63. For Wingate’s advocacy of general searches for poachers and other felons, see: ibid. (2nd ed., 1660), pp. 47–48; (3rd ed., 1663), pp. 38–39; (4th ed., 1677), p. 59.

7 Meriton, Guide (1669), pp. 33–35; (2nd ed., 1671; 4th ed., 1674; 5th ed., 1677; 6th ed., 1679) pp. 37–39; (7th ed., 1682), pp. 28–29; (8th ed., 1685), p. 29: all regarding general customs searches via warrant and writ of assistance. For the quoted language on poaching searches: ibid. (1669), p. 36; (3rd ed., 1671; 4th ed., 1674; 5th ed., 1677; 6th ed., 1679), p. 40; (7th ed., 1682; 8th ed., 1685), p. 29. For the quote on the hue and cry: ibid. (1669), p. 55; (3rd ed., 1671; 4th ed., 1674; 5th ed., 1677; 6th ed., 1679), p. 62; (7th ed., 1682; 8th ed., 1685), p. 45. For advice in other manuals to conduct general searches: Turner, High Constables (1671), pp. 34–35, 53, 74–75. New Guide for Constables (1692), pp. 15–16, 19–20, 30–35 passim, 39, 41, 44.

8 On Coke: Sheppard, Whole Office (1650), vol. 1, p. 13; (2nd ed., 1652), vol. 1, pp. 33–34; (3rd ed., 1656), vol. 1, pp. 38–39. idem., Sure Guide (1663), p. 268; (2nd ed., 1669), pp. 324, 427. Bond, Complete Guide (1685), vol. 1, p. 236.

9 Bond, Complete Guide (1685), vol. 1, p. 236. For Bond’s warrants, see above, footnote 114, nos. 30–37.

10 Sheppard, Offices and Duties of Constables (1641), p. 54.

11 Sheppard, Whole Office (1650), vol. 1, p. 13.

12 Sheppard, Justice of Peace: His Clerk’s Cabinet (1654), p. 21.

13 Sheppard, Sure Guide for Justices of Peace (1663), p. 268.

14 For the books that Sheppard wrote, see above, footnote 3; for his warrants see Appendix C-2, nos. 5–9.

15 Care, Eng. Liberties (16[80]), pp. 193, 198–99. For a fuller treatment of Care and of the evolution of specific search warrants after 1700, see below, Chapters 12 and 13.

16 Order of the High Commission, 15 June 1634/5, C. S. P. D., Charles I, vol. 8 (1635), p. 220. High Commission to master and wardens of Stationers, Lambeth, 18 Feb. 1635/6, S. P., 16/314, art. 20, fol. 47, P. R. O. (quote at same).

17 Coke, Institutes, vol. 2, pp. 731–32.

18 Proclamations, 14 and 20 January 1621, C. J., vol. 2 (1640–42), pp. 378, col. 2 (quote, “& any other suspected places”) at same, 187, col. 1 (second quote re. Vaux at same).

19 True Relation of a Wonderfull…Passage…at St. Albans (1642), p. 2.

20 Ibid., pp. 1–3.

21 Customs, Excise, and Impost Ordinances of: 30 May 1643, Acts and Ordinances, Firth and Rait eds., vol. 1 (1643–49), pp. 163–65; 22 July 1643, sec. 21, ibid., p. 207; 8 Sept. 1643, sec. 22, ibid., pp. 282 at 284; 14 Apr. 1645, ibid., pp. 667–68. Censorship Ordinances of: 14 June 1643, ibid., p. 185; 30 Sept. 1647, ibid., p. 1022; 20 Sept. 1649, ibid., vol. 2 (1649–60), pp. 245 at 251; 7 Jan. 1653, ibid., p. 696.

22 Entry, 28 May 1643, Sir Simonds D’ewes, “Journal of the Parliament Began November 3, Tuesday, A. D. 1640” (Harleian Mss., 164), fol. 346 verso, Br. Lib. Quote, “father of the excise”: Blackstone, Commentaries (1765–69), vol. 1, p. 309.

23 For the searches of Laud, see: Trevor-Roper, Laud (1940), pp. 418–20, 426.

24 [Laud], “A Briefe Relation of the Death and Sufferings of…the Lord Archbishop of Canterbury,” n.p., n.d., Somers, Tracts (1748–52), vol. 6 (ser. 2, vol. 2), pp. 290–92.

25 “A Briefe Relation of Certain…Passages in the Starre Chamber,” 4 June 1637, Prynne, New Discovery (1641), p. 10. ibid., p. 13. Prynne to the House of Commons, 3 Dec. 1640, ibid., pp. 115 at 124. Prynne to Laud, 11 June 1634, Prynne Documents, Gardiner ed., pp. 32 at 54–55.

26 For the warrant, see: Committee…for the Safety of the Kingdom to William Prinne et al., 30 May 1643, C. S. P. D., Charles I, vol. 18 (1641–43), p. 463; printed in full in Prynne, Breviate of Laud (1644), p. 28. Laud, Hist. of Troubles (1695), pp. 205–06.

27 Ibid., p. 205.

28 Ibid., pp. 205–06. “Notes of Evidence,” [1643], C. S. P. D., Charles I, vol. 18 (1641–43), pp. 522–23. “Brief Notes,” [1643], ibid. p. 545. Sp., Laud (on the scaffold), 10 Jan. 1644/5, S. T., vol. 4 (1640–49), p. 618.

29 [William Prynne], A Full vindication and Answer of the Eleven Members, 19 July [1647] (London, 1647), p. 4. For a fuller discussion of the incident: Maurice Ashley, Oliver Cromwell, The Conservative Dictator (London, 1937), pp. 127–32. For the earlier searches and seizures respecting Holles and for Maynard’s criticism of such conduct, see: The council to Sir William Boswell, 4 Mar. 1628/9, P. C., Acts, n.s., 1628–29, p. 352 (no. 1097). Resolution, 6 July 1641, sec. 3, C. J., vol. 2 (1640–42), p. 200, col. 2. Resolution, 3 Jan. 1641/2, ibid., p. 366, col. 2. Procl. no. 328, Whitehall, 6 Jan. 1642, Stuart Procls., Larkin and Hughes eds., vol. 2 (1625–46), pp. 757 at 758. Sp., Maynard, 5 Jan. 1642, Maynard, Speech (1642), pp. 5 at 6.

30 Treasurer Southampton to Thomas Veele et al. 6 Oct. 1662, C. T. B., vol. 1 (1660–67), p. 436.

31 Order, 24 Aug. 1660, L. J., vol. 11 (1660–66), pp. 140–41. The warrants fell into distinct classes, only one of which was fully specific:

Specific

Order, 24 Aug. 1660, ibid., p. 141, col. 2.

Multiple Specific (naming the houses of as many as 15 persons)

Order, 26 June 1660, ibid., p. 76, col. 1. Order, 30 June 1660, ibid., pp. 79–80 (respecting four lords).

Multiple Specific and General Search as Well (to search specified places first and all suspected places afterward)

Order, 27 June 1660, ibid., pp. 77, col. 1. Order, 29 June 1660, ibid., p. 78, col. 2. Order, 30 June 1660, ibid., p. 79, col. 2. Order, 11 Aug. 1660, ibid., p. 124.

Full General Search

Orders, 24 Aug. 1660, ibid., pp. 140–41 (4 warrants).

General Seizure

Order, 3 July 1660, ibid., p. 82, col. 1. Order, 4 July 1660, ibid., p. 83, col. 1. Order, 9 July 1660, ibid., p. 85. For a fuller discussion of the background of these warrants and the Parliamentary debate concerning the, see: Frese, “Writs of Assistance” (Ph.D., 1951), pp. 51–54.

32 Excise Searches

12 Charles II, c. 23, sec. 19 (1660), S. L., vol. 7, p. 466. 12 Charles II, c. 24, sec. 33 (1660), ibid., p. 479.

Militia Act (regarding political dissidents)

13 and 14 Charles II, c. 3, sec. 14(2) (1662), ibid., vol. 8, p. 40.

Licensing Act (for censorship)

13 and 14 Charles II, c. 33, sec. 15 (1662), ibid., pp. 145–46.

Customs

12 Charles II, c. 19, secs. 1–4 (1660), ibid., vol. 7, pp. 460–61 . 13 and 14 Charles II, c. 11, sec. 5 (1662), ibid., pp. 80–81.

33 Sp., Sergeant Charlton, 12 May 1662, L. J., vol. 11 1660–66), p. 455, col. 2. In reporting the objections of a committee of the lower house to exempting the houses of peers from general searches under the bill, Sir Heneage Finch had made a similar point: Sp., 29 July 1661, C. J., vol. 8 (1660–67), p. 315, col. 2. For the act itself, see: 13 and 14 Charles II, c. 3, sec. 14(2), S. L., vol. 8, p. 40. For a more detailed discussion of the debate on the Militia and Hearth Acts, see: Frese, “Writs of Assistance” (Ph.D., 1951), pp. 82–88 passim.

34 Sp., 19 May 1662, L. J., vol. 11 (1660–66), p. 471, col. 1.

35 Ibid. For the act itself and searches under it: 13 and 14 Charles II, c. 10, sec. 3 (1662), S. L., vol. 8, pp. 72–73.

36 Treasurer Southampton to John Cottman, 14 Oct. 1663, C. T. B., vol. 1 (1660–67), p. 550. “Breve Assisten’ pro Officiar’ Custum,” Brown, Compendium (1688), pp. 358–60.

37 Note that the enactments in question transcend the Scroggs Affair: 13 and 14 Charles II, c. 33, sec. 15 (1662), S. L., vol. 8, pp. 145–46. 16 Charles II, c. 8 (1664), S. R., vol. 5, p. 524. 16 and 17 Charles II, c. 7 (1664/5), ibid., p. 556. 17 Charles II, c. 4, sec. 1 (1665), ibid., p. 577. 1 James II, c. 17, sec. 15 (1685), S. L., vol. 8, p. 466. 4 and 5 William and Mary, c. 24, sec. 14 (1692), ibid., vol. 9, p. 233. On fuller details on the impeachment of Scroggs, see: Alfred F. Havinghurst, “Judiciary and Politics in the Reign of Charles II,” L. Q. R., vol. 66 (1950), pp. 235–36.

38 For two examples of general warrants by Scroggs after the expiration of legislation permitting them, see: Scroggs to Robert Stephens, 29 Nov. 1679 and Same to Same, 28 May 1680, in Procs., 23 Dec. 1680, C. J., vol. 9 (1667–87), pp. 690–91. P. D., vol. 2 [1680–92], pp. 16–18. C. H., vol. 2 [1680–95], p. 57. See also Opinion of Scroggs, L. C. J., Trial of Harris (K. B. 1680), S. T., vol. 7 (1678–80), pp. 926 at 929–30. Brief of Sir George Jeffries, Trial of Carr (K. B. 2 July 1680), ibid., pp. 1111 at 1114.

39 Procs., 5–7 Jan. 1680/1, L. J., vol. 13 (1675–81), pp. 737–38. L. H., vol. 1 (1660–97), pp. 254–55. C. H., vol. 2 [1680–95], p. 74. P. D., vol. 2 [1680–92], p. 37. Entries, 7 Jan. 1680/1, 11 April 1681, Luttrell, Relation (1857), vol. 1 [1678–89], pp. 74–75.

40 1 James II, c. 17, sec. 5 (1685), S. L., vol. 8, p. 466. For the continuation of general warrants as a censorship device after 1695, see: Webb, comp., Warrants (1763), passim.

41 For the king’s opinion, see: Sp., William III, 1 Mar. 1689, C. H., vol. 2 [1680–95], p. 278.

42 1 James II, c. 17, sec. 15 (1685), S. L., vol. 8, p. 466. To the same effect: 4 and 5 William and Mary, c. 24, sec. 14 (1692), ibid., vol. 9, p. 233.

43 Excise

1 William and Mary, c. 24, secs. 4, 9 (1688), ibid., pp. 49–51. 4 and 5 William and Mary, c. 3, sec. 2 (1692), ibid., p. 160. 5 and 6 William and Mary, c. 20, sec. 21 (1694), ibid., pp. 292–93. 7 and 8 William III, c. 30, sec. 17 (1696), ibid., pp. 460, 465.

Writs of Assistance

2 William and Mary, c. 4 (1689), S. R., vol. 6, pp. 166 at 167; S. L., vol. 7, p. 77 (Summary only).

Censorship (Licensing Acts)

4 and 5 William and Mary, c. 24, sec. 14 (1692), ibid., p. 233.

Poaching

3 and 4 William and Mary, c. 10, sec. 3 (1691), ibid., p. 141. 4 and 5 William and Mary, c. 23, sec. 3 (1692), ibid., pp. 225–26.

44 Disarmament of Catholics

1 William and Mary, c. 15, sec. 3 (1688), S. R., vol. 6, pp. 71 at 72.

Land Tax

1 William and Mary, sess. 2, c. 1, sec. 10 (1688), ibid., pp. 104 at 138.

Bullion and Counterfeiting Searches

6 and 7 William and Mary, c. 17, sec. 8 (1695), S. L., vol. 9, pp. 369–70.

45 R v Penn (London Mayor’s Ct. 1–5 Sept. 1670), S. T., vol. 6 (1661–78), pp. 951–69. For a discussion of the trial, see: Julius J. Marke, “Trial of William Penn: A Landmark in the Development of the Jury System” in idem., Vignettes (1965), pp. 217–24; idem., “The Trial of William Penn,” Litigation, vol. 6, no. 2 (Winter 1980), pp. 35–36, 49–50.

46 Lord Nottingham to William Sharpe, Whitehall, 22 June 1689, Domestic Warrant Book, fol. 35; S. P. 44/339, fol. 96, P. R. O.

47 Justice Swallowe’s Case (K. B.? [April-May] 1648], in Hale, Historia Placitorum Coronae (1736), vol. 1, p. 580, vol. 2, p. 112. Act of 20 May 1631, P. C., Acts, n.s., vol. [46] (1630–31), p. 341 (no. 1011).

48 “Dictionary of rates & laws relating to customs, 1682,” Additional Mss., 32,523, fol. 235 verso, item 149 (sub. cap. “Examination”), Br. Lib. Report of Commissioners of Customs to Lords of Treasury, 6 Nov. 1693, C. T. P., vol. 1 (1556/7–1696), p. 327.

49 Procl. no. 57, Westminister, 5 Nov. 1605, Stuart Procls., Larkin and Hughes eds., vol. 1 (1603–25), p. 123. Procl. no. 60, Westminister, 18 Nov. 1605, ibid., pp. 128–29. Examination of Lewis Tresham, n.p., 9 Dec. 1605, S. P. 14/17, fol. 35 recto, Br. Lib. Examination of George Vavasour, 9 Dec. 1605, S. P. 14/216, pt. 2, fol. 54 recto, Br. Lib. For a discussion of Coke’s search, see: Hugh Ross Williamson, The Gunpowder Plot (London, [1951]), pp. 196–97.

50 For the leading discussions of Coke’s arrest and search in 1621, see: Woolrych, Coke (1826), pp. 170–73. Samuel Rawson Gardiner, Prince Charles and the Spanish Marriage, 1617–23 (London, 1869), vol. 2, p. 154. James, Coke (1929), pp. 39–41. Lyon and Block, Coke (1929), pp. 294–96. Bowen, Lion and Throne (1956), pp. 454–57. Zaller, Parliament of 1621 (1971), pp. 184–85. Jamieson, “Coke” (Ph.D., 1978), p. 233.

51 Recs. dated 27 Dec. 1621–8 Aug. 1622, “The degrees, proceedings and deliueries of Sr Edward Coke,” The Manuscripts of the…Earl of Leicester, Holkham Ms. 727 (Original Documents and Papers of the Coke Family), vol. 1, items [32–33] and 37, Holkham Hall, Wells, Norfolk, U. K. Arthur Wilson, The History of Great Britain (London, 1653), p. 191. Rev. Joseph Mead to Sir Martin Stuteville, Christ Church, 10 Jan. 1621/2, Thomas Birch ed., The Court and Times of James I (2 vols. London, 1849), vol. 2 [1617–25], p. 281 (quote at same).

52 Holkham Ms. 727 (last footnote), items 1, 7, 32. Recd., 27 Dec. 1621, William Camden, “Annales Regni Regis Jacobi I,” in idem., V.CL. Gulielmi Camdeni et Illustrum Virorum ad G. Camdenum Epistolae (London, 1691), Appdx., p. 76. John Chamberlain to Sir Dudley Carleton, London, 4 Jan. 1622, John Chamberlain, Letters, ed. by N. E. Mclure (Philadelphia, 1939), vol. 2, p. 418.

53 The council to Sir Robert Cotton, Sir Thomas Wilson, and John Dickenson, 30 Dec. 1621 (two separate warrants of same date), P. C., Acts, n.s., vol. 28 (1621–23), p. 107 (all quotes from the first warrant).

54 Locke to (Carleton), n.p., 12 Jan. 1622, C. S. P. D., James I, vol. 3 (1619–23), p. 336. Sp., Coke 29 April 1628, Commons Debates, 1628, vol. 3 (21 Apr.-27 May), pp. 150, col. 2; 154, 159, 162, col. 2, 166, col. 2. In these debates leading to the Petition of Right, Coke enumerated the three lost manuscripts as an inventory of the records of the Tower of London by William Lambarde, a collection of old Chancery orders, and a treatise on Ireland’s laws and government. In his personal manuscripts, however, Coke gave the number of lost documents as 38. “The degrees…of Coke,” Holkham Ms. 727 (above footnote 159), vol. 1, items 7 and [32–33], sub 27 Dec. 18 Jac. 1 [i.e., 1621]. This last item gives the date of his release as 8 Aug. 1622.

55 For evidence of Coke’s prominence in drafting the petition, see: Sps., Coke, 22 Mar., 7 Apr., 5 May 1628, Proceedings in Parliament Relating to the Liberty of the Subject, S. T., vol. 3 (1627–40), pp. 60, 63, 126, 188. Procs., 3, 28 Apr., 20 May 1628, C. J., vol. 1 (1547–1628), pp. 890, 899, 901. Sir Francis Nethersole to Elizabeth, Queen of Bohemia, [14 Apr.] 1628, C. S. P. D., Charles I, vol. 3 (1628–29), p. 73. Coke Detection (1694), Bks. I and II, p. 297. For secondary sources on the same subject: Campbell, Chief Justices (1849), vol. 1, pp. 328–31. Jamieson, “Coke” (Ph.D., 1978), pp. 263–75.

56 Sp., Coke, 29 April 1628, Commons Debates, 1628, vol. 3 (21 Apr.–27 May), pp. 150, col. 2; 154, 159, 162; col. 2; 166, col. 2; quote at p. 159, col. 2.

57 Sp., Coke, 29 April 1628, Commons Debates, 1628, vol. 3 (21 Apr.–27 May), pp. 150, col. 2; 154, 159, 162; col. 2; 166, col. 2; quote at p. 154. Coke, Institutes, vol. 4, pp. 176–77. Coke made his famous declaration that “Magna Carta is such a Fellow, that he will have no sovereign” later in the same debate. Sp., [17 May 1628?], Rushworth, Collections, vol. 1 (1618–29), p. 562. For the prohibition of imprisonment without cause shown in the Petition, see: 3 Charles I, c. 1, secs. 5, 8 (7 June 1628), S. R., vol. 5, pp. 23 at 24.

58 Brief of Coke, Trial of Winter et al., (Commission, 27 Jan. 1606), S. T., vol. 2 (1603–27), pp. 159 at 187–89.

59 Brief of Coke, Raleigh’s Case (17 Nov. 1603), ibid., pp. 1–8, 19–20, 26. Quotes: “monster” at p. 7; “Spider” at p. 20 and “vile” at p. 26. Scholarly damnation of Coke’s performance against Raleigh stretches back more than a century. Campbell, Lives of Chief Justices (1849), vol. 1, p. 258: “…by his brutal conduct to the accused, he brought permanent disgrace upon himself and upon the English bar.” Sir Harry L. Stephen, “The Trial of Sir Walter Raleigh,” R. H. S., Trans., ser. 4, vol. 2 (1919), p. 185: “[Coke’s] vituperation of Raleigh is an unparalleled example of forensic brutality.” Willard Wallace, Sir Walter Raleigh (Princeton, 1959), p. 203: “sour, truculent, abusive…,[Coke] behaved…in a manner that disgraced the law he reverenced.” For other commentary on Raleigh’s trial, see: William Stebbing, Sir Walter Raleigh (Oxford, 1891), pp. 207–21. A. L. Rowse, Sir Walter Raleigh (New York, 1962), pp. 237–38. Robert Lacey, Sir Walter Raleigh (London, 1973), pp. 295–307, esp. p. 297.

60 Brief of Coke, Collier v Collier (C. P., 1589), Moore 906; 72 E. R. 987. 4 Leonard 194; 74 E. R. 816. 1 Croke Elizabeth 201; 78 E. R. 457.

61 “The Degrees, Proceedings, and Deliueries of Sr. Edward Coke,” The Manuscripts of the Earl of Leicester, Holkham Ms. 727 (Original Documents and Papers of the Coke Family) vol. 1, items. [32–33], Holkham Hall, Wells, Norfolk. On Coke’s tenure as a judge and his collisions with James I, see: Campbell, Chief Justices (1849), vol. 1, p. 278. Roland G. Usher, “James I and Sir Edward Coke,” E. H. R., vol. 18 (1903), pp. 664–75. Levy, Fifth Amendment (1968), pp. 229–54.

62 Opinion of Coke, C. J., Prohibitions del Roy (10 Nov. 1608), 12 Coke 63–65; 77 E. R. 1342–43. For discussions of the case, see: Levy, Fifth Amendment (1968), pp. 243–44. Jamieson, “Coke” (Ph.D., 1978), pp. 84–89.

63 Case of Proclamations (20 Sept. 1610), 12 Coke 74; 77. E. R. 1352–54; S. T., vol. 2 (1603–27), pp. 723–25. Opinion of Coke, L. C. J., Boyer’s Case (K. B. [Jan./Feb.] 1614), 2 Bulstrode 182–83; 80 E. R. 1052. On the first case, see: Esther S. Cope, “Sir Edward Coke and Proclamations, 1610,” A. J. L. H., vol. 15 (1971), pp. 215–21. Sir Charles Ogilivie, The King’s Government and the Common Law, 1471–1641 (Oxford, 1954), pp. 137–39. Jamieson, “Coke” (Ph.D., 1978), pp. 140–43.

64 Peacham’s Case (K. B. [Jan./Mar.] 1614/5), Croke Charles 126; 79 E. R. 125, 711; S. T. vol. 2 (1605–27), p. 869. James I, “The True State of the Question, Whether Peacham’s Case Be Treason or Not,” n.d., Lord Haile, Memorials…Relating to…the Reign of James I (Glascow, 1762), pp. 36–39. Sir Francis Bacon to James I, 27 Jan. 1614/5 and Same to Same, 31 Jan. 1614/5, Sir Francis Bacon, Resuscitatio, comp. by William Rawley (London, 1657): Several Letters…to Queen Elizabeth, King James, [etc.], pp. 48–51. William Carnsew to Rich. Carnsew, St. Anthony, 17 Mar. 1615, C. S. P. D., Edward VI-James I, vol. 9 (1611–18), p. 279 (no. 53). George Carew to (Sir Thomas Roe), Savoy, 24 Jan. 1616, ibid., p. 344. Chamberlain to Carlton, 27 Mar. 1616, ibid., p. 353. For the secondary sources on Peacham’s Case, see: Bowen, Lion and the Throne (1956), pp. 350–55. Levy, Fifth Amendment (1968), p. 253. Jamieson, “Coke” (Ph.D., 1978), pp. 159–62. For Coke’s dismissal: “The Degrees…of Sir Edward Coke,” sub. 16 Nov. 1616, Holkham Ms. 727, vol. 1, items [32–33], above footnote 168. For an analysis of yet another source of abrasion between Coke and James I, see: John P. Dawson, “Coke and Ellesmere Disinterred: The Attack on Chancery in 1616,” Illinois Law Review, vol. 36 (1941–42), pp. 127–52.

65 “Reasons Why it should be exceeding much for his Majesty’s service to remove the Lord Coke,” n.p. [1613?], Francis Bacon, Letters, Speeches, Advices & C. (London, 1763), p. 43.

66 For the best analysis of Coke’s behavior in Parliament, see: White, Coke (1979), pp. 27–274.

67 For the primary sources on the impeachment of Bacon, see: Sp., Coke, 19 Mar. 1621, C. D., 1621, vol. 2, p. 245. Indictment, 24 Apr. 1621, P. C. H., vol. 5 (1603–23), pp. 403–06, 411–15. Order, 3 May 1621, ibid., p. 420. Bacon’s Case (15 Mar.-3 May 1620/1), S. T., vol. 2 (1603–27), pp. 1087–1113. For discussions of the case and of its background, see: Charles N. Burch, “The Rivals,” Virginia Law Review, vol. 14 (1927–28), pp. 507–25. Eberhard P. Deutsch, “The King vs Sir Francis Bacon (1621),” Louisiana Bar Journal, vol. 22 (1974–75), pp. 191–98. Tite, Impeachment in Stuart Eng. (1974), pp. 110–18. Jamieson, “Coke” (Ph.D., 1978), pp. 113–14, 128–30. For the primary sources on the foreign policy debate (The Protestation of 1621), see: Sp., Coke, 3 Dec. 1621, C. J., vol. 1 (1547–1628), pp. 656–57 and C. D., 1621, vol. 2, pp. 273–74. Sp., Coke, 5 Dec. 1621, ibid., p. 284 (quote, “any Business” at same). Sp., Coke, 15 Dec. 1621, ibid., p. 337; C. J., vol. 1 (1547–1628), p. 665, col. 2; C. D., 1621, Notestein ed. (1935), vol. 6, p. 240. Sp., Coke, 17 Dec. 1621, ibid., vol. 5, p. 240, vol. 6, p. 241. For the leading monograph on the subject, see: Conrad Russell, “The Foreign Policy Debate in the House of Commons in 1621,” Historical Journal, vol. 20 (1977), pp. 289–309. For other secondary sources on the foreign policy debate of 1621: Woolrych, Coke (1826), pp. 169–70. Lyon and Block, Coke (1929), pp. 292–94. George L. Mosse, The Struggle for Sovereignty in England From…Queen Elizabeth to the Petition of Right (East Lansing, 1951), pp. 134–36, 162–66. Bowen, Lion and Throne (1956), pp. 447–54. Zaller, Parliament of 1621 (1971), pp. 142–87. Jamieson, “Coke” (Ph.D., 1978), pp. 179–232. White, Coke (1979), pp. 171–79.

68 Sp., Coke, 5 Aug. 1625, C. J., vol. 1 (1547–1628), pp. 810–11; P. C. H., vol. 6 (1623–26), pp. 363–64; Debates in the House of Commons in 1625, ed. by Samuel R. Gardiner (Westminister, 1873), pp. 84–87. For analyses of this subject, see: J. N. Ball, “Sir John Eliot at the Oxford Parliament, 1625,” Institute of Hist. Research, Bulletin, vol. 28 (1935), pp. 117–18. Hulme, Eliot (1957), pp. 87–93. Conrad Russell, The Crisis of Parliament…1509–1660 (London, 1971), pp. 300–01. White, Coke (1979), pp. 205–11.

69 For discussions of the incident, see: Woolrych, Coke (1826), p. 189. Johnson, Coke (1837), vol. 2, pp. 320–30. Campbell, Chief Justices (1849), vol. 1, p. 336. Lyon and Block, Coke (1930), pp. 329–30.

70 The King to Secretary Francis Windebank, Belvoir Castle, 26 July 1634, C. S. P. D., Charles I, vol. 7 (1634–35), p. 165.

71 Coke, Detection (1694), Bks. I and II, p. 354.

72 “A Note of such thinges as were found in a Trunk of Sr. Edw. Coke taken from Pepys his servant. this trunk was brought to Bagshot by his M: commandment, & then broken up by his Ma.: 9 septm: 1634,” Laudian Papers, Lambeth Palace Manuscript 943, fols. 369–70, Lambeth Palace Library.

73 Secretary Windebank to Nicholas, Whitehall, 4 and 9 Dec. 1634, C. S. P. D., Charles I, vol. 7 (1634–35), pp. 340–41, 348.