Abstract
This chapter discusses the common law concept of allegiance, which recognised and imposed a personal bond between the early modern sovereign and the early modern subject. The authorities that emerged during the period, most importantly Story’s Case (1571) and Calvin’s Case (1608), were indicative of the deep blending of religion and law at the time, for example, the Tudor and Stuart usage of the book of Ecclesiastes, ‘Curse not the King, no not in thy thought, neither curse the rich in thy bed chamber’. These authorities both reflected and guided the general discourse of loyalty, and their weighty implications were the subjects of social transmission within religious contexts as well as in the courts. The Epilogue offers a reflection on the tenaciousness of the idea of loyalty to sovereign, which casts shadows in law and society to this day.
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Notes
- 1.
Edward Coke, The Reports of Sir Edward Coke…, 13 vols. (London, 1738) (afterwards, Coke), vii, p. 1 [Trin. 6 Jac. 1].
- 2.
Ibid., pp. 7–8 [portion omitted].
- 3.
P. J. Price, ‘Natural Law and Birthright Citizenship in Calvin’s Case (1608)’, Yale Journal of Law & the Humanities 9 (1997), 73–145.
- 4.
See Price, ‘Natural Law and Birthright Citizenship’, p. 75.
- 5.
See The Works of Francis Bacon, ed. J. Spedding, R. L. Ellis and D. D. Heath (London, 1861–79), pp. 641–79.
- 6.
See Price, ‘Natural Law and Birthright Citizenship’, pp. 121–2.
- 7.
James Dyer, Reports of cases in the reigns of Hen. VIII, Edw. VI, Q. Mary, and Q. Eliz. 3 (Dublin, 1794), p. 300 [East. 13 Eliz. 38].
- 8.
F. Marbury, A fruitful sermon necessary for the time preached at the Spittle upon the Tuesday in Easter weeke last, by Frauncis Marbury (London, 1602).
- 9.
See Price, ‘Natural Law and Birthright Citizenship’, pp. 74, 121–2.
- 10.
Ibid., pp. 144–5.
- 11.
Dyer, supra. The few side-notes with citations are omitted.
- 12.
The general mode of losing Roman citizenship was ‘substitution’. A Roman was divested of his former civitas immediately upon the voluntary acquisition of another nationality. See J. W. Salmond, ‘Citizenship and Allegiance’, Law Quarterly Review 17 (1901), 270–82; D. W. Maxey, ‘Loss of Nationality: Individual Choice or Government Fiat?’, Albany Law Review 26 (1962), 151–86.
- 13.
At this point judges in England were using the term ‘precedent’ vis-à-vis miscellaneous authorities beyond published judicial decisions, from statutes, charters, various traditions, and so on. However, finding discernible distinctions between holding and dictum in Coke’s recordings can be difficult. (Nb: The most enduring aspect of Calvin’s Case is dictum; see below.)
- 14.
See J. Lock, ‘Story, John’, in ODNB, available at: https://doi.org/10.1093/ref:odnb/26598 (accessed 25 December 2018); R. Pollitt, ‘The Abduction of Doctor John Story and the Evolution of Elizabethan Intelligence Operations’, Sixteenth Century Journal 14 (1983), 131–56.
- 15.
5 Elizabeth, Cap. 1, § 9. See also, J. E. Neale, ‘The Elizabethan Acts of Supremacy and Uniformity’, EHR 65 (1950), 304–32, esp. p. 315.
- 16.
See Pollitt, ‘The Abduction of Doctor John Story’, pp. 143–6.
- 17.
Howell, State Trials, i, col. 1093.
- 18.
See Pollitt, ‘The Abduction of Doctor John Story’, p. 152.
- 19.
Howell, State Trials i, col. 1096.
- 20.
Pollitt, ‘The Abduction of Doctor John Story’, p. 140.
- 21.
Ibid., pp. 155–6 (quoting TNA, SP 53/6/37).
- 22.
L. B. Smith, Treason in Tudor England: Politics and Paranoia (Princeton, 2014), p. 1.
- 23.
Pollitt, ‘The Abduction of Doctor John Story’, pp. 152–3; Calendar of Letters and Papers Relating to English Affairs, Preserved Principally in the Archives of Simancas, 4 vols. (London, 1892), ii, pp. 326–7.
- 24.
The [1560] Geneva Bible: A Facsimile. With an introduction by Lloyd E. Berry (Wisconsin, 1969), p. 280.
- 25.
Ibid., sig. A6.
- 26.
See Smith, Treason in Tudor England, p. 2.
- 27.
Ibid., p. 2, fn. 3–5.
- 28.
‘Remember nowe thy Creator in the daies of thy youth, whiles the euill daies come not, nor the yeeres approche, wherein thou shalt say, I haue no pleasure in them’, et. seq.
- 29.
R. Curteys, A Sermon preached at Greenwiche, before the Queenes Majestie, by the reverende Father in God the Byshop of Chichester, the 14 Day of March 1573 (London, 1573), sigs. A5, B3 [portions omitted].
- 30.
Marbury, At the Spittle, sig. A5.
- 31.
Ibid., sig. A4.
- 32.
‘This Booke being made after Salomons rising from his fall, hath the commendation both of his repentance and of the experience of his very soule, according to the Hebrue title of precheresse (as one would saie giuen by himselfe) in the feminine gender’. Ibid., sig. A7. One of the arguments offered in my forthcoming thesis is that an interpretive trend seems to have started with the puritan preacher George Gifford in his Eight Sermons on Ecclesiastes (1589). Gifford’s emphasis on the feminine gender of Solomon’s Hebrew title Koheleth allowed him to finesse to his preaching of Ecclesiastes vis-à-vis political and ecclesiastical authorities, and this innovation seems to have helped other authors to expand and nuance their uses and interpretations of that scripture during the ‘long 1590s’.
- 33.
Ibid., sig. A8 [portion omitted].
- 34.
Ibid., sigs. C1–C2.
- 35.
Ibid., sig. B8.
- 36.
Ibid., sig. D5. For discussion of ‘hypocrites’, ‘reprobates’, and Calvinist theology, see L. Dixon, Practical Predestinarians in England, c. 1590–1640 (Ashgate, 2014), pp. 273–93.
- 37.
For a general discussion of English Catholicism, see K. McKeogh, ‘Sir Thomas Tresham (1543–1605) and Early Modern Catholic Culture and Identity, 1580–1610’ (unpublished DPhil thesis, University of Oxford, 2017).
- 38.
Marbury, At the Spittle, sig. B8 [emphasis added].
- 39.
See Lock, ‘Story, John’.
- 40.
384 U.S. 436 (1966).
- 41.
Marbury, At the Spittle, sig. C7.
- 42.
For a discussion of London’s preaching spaces, see E. Rhatigan, ‘Preaching Venues: Architecture and Auditories’, in The Oxford Handbook of the Early Modern Sermon, ed. H. Adlington, P. McCullough and E. Rhatigan (Oxford, 2011), pp. 87–116.
- 43.
P. Collinson, The Elizabethan Puritan Movement (Oxford, 1990), p. 443. See also, E. LaPlante, American Jezebel: The Uncommon Life of Anne Hutchinson, The Woman Who Defied the Puritans (New York, 2002).
- 44.
Collinson, The Elizabethan Puritan Movement, p. 443. See also, T. N. S. Lennam, ‘Francis Merbury, 1555–1611’, Studies in Philology 65 (1968), 207–22.
- 45.
Mary Morrissey has shown that political control of the outdoor pulpits, and the substantive disparities between sermons as-delivered and as-printed, have been overstated. See M. Morrissey, Politics and the Paul’s Cross Sermons, 1558–1642 (Oxford, 2011), p. 68 et. seq.
- 46.
Ibid., pp. 214–17.
- 47.
F. Marbury, A sermon preached at Paules Crosse the 13 of June 1602, By M. Francis Marburie (London, 1602), sig. B6.
- 48.
In the trial for treason of William, Lord Russell (1683), it was noted that ‘Dr. Story’s Case’ was settled law and had been cited some forty times to date: Howell, State Trials, ix, cols. 753, 764.
- 49.
See I. Tsiang, The Question of Expatriation in America Prior to 1907 (Baltimore, 1942).
- 50.
Marbury, At the Spittle, sig. B5.
- 51.
Lennam, ‘Francis Merbury’, pp. 211–13.
- 52.
F. Bacon, Apophthegmes new and old. Collected by the Right Honourable, Francis Lo. Verulam, Viscount St Alban (London, 1625), nos. 56, 74–5.
- 53.
See M. V. Fox, Qohelet and His Contradictions (Sheffield, 1989).
- 54.
See M. Hattaway, ‘Paradoxes of Solomon: Learning in the English Renaissance’, Journal of the History of Ideas 29 (1968), 499–530.
- 55.
The Works of Francis Bacon, ed. Spedding, Ellis and Heath, pp. 655–6.
- 56.
Ibid., p. 776.
- 57.
Ibid., pp. 646–7.
- 58.
Which allowed children born outside of the king’s territories to inherit land as natural subjects if the parents were ‘of the faith and ligeance of the King of England’: De Natis Ultra Mare (1351), in Statutes of the Realm, 11 vols. (London, 1810–28), i, p. 310.
- 59.
For example 11 Henry VII 1495 (‘The King oure Sovereign Lord calling to his remembraunce the duetie of alliegeaunce of his subgettis…That it is not resonable but ayenst all lawes reason and gode conscience that…any thing shuld loose or forfeite for doyng their true dutie and service of alliegeaunce…’).
- 60.
Subjects born ad fidem Regis were ‘no aliens’ in England: Coke, vii, 9b and 2 St Tr 688 (Coke refers to the case dating to the reign of Edward I).
- 61.
The Works of Francis Bacon, ed. Spedding, Ellis and Heath, p. 664. Of course, by ‘natural law’ we must read the ‘eternal law of the [Judeo-Christian God] Creator’. Coke, vii, 25.
- 62.
The [1560] Geneva Bible, p. 278.
- 63.
The Works of Francis Bacon, ed. Spedding, Ellis and Heath, pp. 641–2.
- 64.
See Price, ‘Natural Law and Birthright Citizenship’, p. 114.
- 65.
This child/parent concept applied to homage between tenant and lord. Englefield’s Case, Coke, vii, 78 [Mich. 33 Eliz. 34], 80.
- 66.
Coke, vii, 26.
- 67.
Coke, vii, 27b–28a [emphasis added].
- 68.
See Tsiang, Expatriation, pp. 11–15.
- 69.
This is not to imply the case met with disfavour after 1688. See, for example, Rex v Macdonald (1747), in Howell, State Trials, xviii, p. 858.
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Heimos, M.A. (2020). Not ‘to Confound Predicaments’: Loyalty and the Common Law, c. 1400–1688. In: Ward, M., Hefferan, M. (eds) Loyalty to the Monarchy in Late Medieval and Early Modern Britain, c.1400-1688. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-37767-0_7
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