Laws Across Oceans
Next to Justinian, Melville’s other eye-catching jurisprudential comparison of the customs governing property in the whale fishery is to Sir Edward Coke. Memorably, Ishmael refers to the distinction between a fast fish (attached by harpoon to a line) and a loose fish (not attached) as �Coke-upon-Littleton of the Fist’, playfully using Coke’s commentaries on medieval English property law to claim the democratic commercial authority of laborers to establish and maintain customary property law in their own right.
Melville’s passage singles out the tension between settler colonialist and prerogative accounts of lawful authority beyond the shore that had exploded over the course of the previous centuries and was at the centre of how Melville understood the contradictions inherent in settler historical self-understanding. Melville reports on a historiÂcal case, Gale v. Wilkinson (1805), which saw the Court of King’s Bench Chief Justice Ellenborough honour the loose-fish and fast-fish distinction to decide the case of a disputed whale and equipment.[904] [905] [906] The case was hardly repreÂsentative, but it did test and exhibit so much of what Melville appreciated about the circumstances of legal disputes in a purportedly lawless zone: in this case, a ruling that a harpooned whale that escapes takes possession of the equipment, and if caught, surrenders possession to the new human holder. The democratic and commercial capacities of lawmaking and agreement beÂyond the regulation of the state are in operation, but it takes not only a high court but a court exercising the direct jurisdictional descendent of praetorian jurisdiction to recognize the distinction and decide a Scottish-originated case using the tools of equitable discretion. Commerce, private property, and the rights of man had not rid the world of power and prerogative.That late Elizabethan and early Stuart rush for empire in the Americas set up a problem for legal thought is clear. Coke himself tried to balance the narÂrative of unbroken continuity in the gradual reformation of custom in the English constitutional edifice with his insistence that the common law judge exercised a supremacy over traditionally rival jurisdictions, namely Chancery and Admiralty, both judicial offices which traced their legitimacy andjuris- prudential authority to concepts and assumptions rooted in natural and RoÂman law. The subsequent royalist jurist and Judge of the Court of Admiralty Richard Zouche seized on Coke's overall jurisprudential project of consolidatÂing jurisdictional authority in the Court of King's Bench, the highest common law court, as a threat to the independence of not only the royal prerogative but of the Court of Admiralty as an independent arm of that prerogative and continuation of the praetorian jurisdiction of the law of the sea inherited from the Roman Mediterranean.[907] [908] For Coke, the argument against the independÂence of what he considered foreign jurisdictions took shape in reports and decisions - most notably in Calvin’s Case (1608) - which asserted the historical primacy of the common law and used it as a way of framing the legal theory of Atlantic empire?7 Building on growing literature of the laws of peoples and the rights and responsibilities of those peoples to practice sociability through the mechanism of imperial extensions of trade, Coke took the opportunity to elaborate the distinctive and diminished rights of Christian and non-Christian societies, describing indigenous people of the North American continent has having the legitimacy of their own laws and customs abrogated in the eyes of the imperial constitution. Just as notably, Coke described settler societies as territories that had not been previously settled, and into which English settler populations carried the common law with them as they planted. This was not just a theory of acquiring landed territory; rather, it was just as much an arguÂment about how law should cross water, and which law. A common law theory of the imperial constitution would prove to be the fundamental bulwark of the ideology of settler legal theory in the North American colonies. Already by the beginning of the seventeenth century, the stage was set for an intractable conflict that would come in the form of the imperial crisis and the American Revolution between a narrative of law that flattened out imperial space as a plane across which the acts of planting, settlement, and commerce extended rights and maxims of property and rule on the one hand and a prerogative- focused theory of a world of competing states, sovereignties, and boundaries on the other. The latter was a framework in which quasi-private agents like the captains of chartered ships and the leaders of chartered colonies were dependÂent on the metropolitan institutions such as the crown and Parliament that sent them, and on the prerogative powers that those institutions could claim over transoceanic spaces. Hugh Grotius, for his part, carefully negotiated these twin traditions in his theory of maritime law. The fundamental problem confronting any attempt at a theory of laws of navigation and trade was where and when judicial authority would be exercised, over who, and for what. The oceanic world of Grotius' Mare Liberum, published in 1609 as a brief for the navigation rights of the Dutch East India Company, is that not just of a free sea but a sea that in its freedom is beset by the problem of judgment in just about every corner of the globe. While God had reserved to himself the highest powers of judgment and punishment, Grotius reasoned, there were two judges left to humanity from which â€?the most happy offender cannot escape: to wit, every man's own conÂscience and fame, or other men's estimation of them. These seats of judgment stand always open to them to whom other tribunals are shut up', Grotius deÂclared. Arguments against Grotius' treatise by English theorists William Welwood and John Selden took issue with his use of Roman legal authority, and did so particularly on the question of how to interpret the principle of the shore and surrounding water as a common space. Confronted with the suggestion that the â€?public' ownership of the shore meant the public of a particular state, â€?that is', in his words, that â€?in a democracy the sea belongs to the people, in a kingÂdom to the king', Grotius reconstructed what might be called ancient maritime prudence for the freedom of early modern imperial trading networks. What is crucial to appreciate is that for Grotius the assertion of that freedom falls back on the office of the judge as its only guarantee: citing Ulpian in the Digest, Gro- tius replies to Welwood’s critique of Mare Liberum by arguing that if no harm was done than anyone sheltering themselves on the shore would be protected â€?by the office and authority of the praetor’.[911] Indeed, all matters dealing with the legal status of people or their shelters would be dealt with by a judge, and a judge exercising authority according to the ius gentium. The praetor’s discreÂtion haunted the very idea of a free sea. Early modern oceanic exploration and empire force a fundamental confrontation with the lawfulness of that which lay beyond possession and law, and so with the persistence of specifically judiÂcial authority as a problem for legal and political thought. That confrontation is the focus of Hobbes’ project in Leviathan. Alexander Haskell has recently and carefully reconstructed the imperial Atlantic context of the book, calling necessary attention to the degree to which Hobbes felt compelled to respond to an emergent commonwealth and common law theory of empire. While the Elizabethan theorists of American settlement such as Richard Hakluyt framed the activities of voyaging and planting as the divinely sanctioned creation of new commonwealths, Hobbes dismissed those who feared the implications of the concept of sovereignty, and developed a theory that sovereign power in the artificial personage of the state was by definition indivisible.3[912] As Christopher Pye has recognized, this is a crucial step in the construction of modern political thought and the enlightened liberal idea of a rational and apolitical state apparatus, but it is important to note that Hobbes’ work is also a critical one[913] In Chapter 24 of Part 2 of Leviathan, â€?Of the NutriÂtion, and Procreation of a Commonwealth’, Hobbes not only adds to this develÂoping theory of an unbroken sovereignty by paying particular attention to the office of the judge, he advances a radically constructivist account of the origins of lawful authority and the institutions of property and money as creations of that authority. The â€?plenty of matter’ Hobbes reasons, â€?is a thing limited by naÂture’ to those commodities given by God or taken by labor from â€?the two breasts of our common mother, land and sea’.[914] He continues, â€?the distribution of the materials of this nourishment... belongeth in all kinds of commonwealth to the sovereign power’. The introduction of customs and rules of commerce and conduct, of propriety, â€?is an effect of commonwealth’. This is the work of soverÂeignty, and as such, it is also the work of empire. It is the judgment of the sovÂereign and of the judicial officers who represent that singular authority to deÂfine and judge â€?what is agreeable to equity and the common good'.3[915] For Hobbes, the juridical power of the sovereign is absolutely foundational, and so jurisdiction was of crucial importance to questions of the legality of empire and the nature of lawful authority at sea and beyond. There is no space or need to rehearse the history of those disputes here, but to see those disputes as part of a much longer history of the problems the boundary of the shore and overseas legality posed to theories of legitimacy ilÂluminates that history in new and important ways. At their core, the constituÂtional disputes as they pertained to the North American colonies were driven by the tension between settler and prerogative accounts of law, a tension that the legitimacy of praetorian, conciliar, equity, admiralty, and other discretionÂary jurisdictional authorities - spread widely across the history of legal theory and the oceanic empires that these theories theorized - kept in check, necesÂsarily existing as they did on the literal - indeed, littoral - boundaries of civil and common law. The American Revolution amounts to an unravelling of a dispute over the legitimacy of discretionary jurisdictional authority that had as much to do with the legislating powers of crown-in-parliament as it did with the delegation of adjudicatory powers to the Board of Trade, the Privy Council, the Court of King's Bench, and the Court of Admiralty, bodies which often authorised, instituted, and enforced a certain type of â€?law' deemed applicable to colonies across the Atlantic (regardless of whether those policies were statuÂtorily enacted or not). Justice Mansfield's famous decision in Somersetv. StewÂart (1772) certainly made the stakes of that jurisdictional conflict clear to slaÂveowners in the American colonies.[918] In declaring that the slave laws of VirÂginia had no binding authority before the English court, Mansfield directly challenged the foundational narratives of civil government that underwrote settler colonial historical self-understanding: namely, that colonists had carÂried with them customary and perhaps even natural rights to be protected in their possessions of lands and goods, including other human beings, that the laws existed on the assumption of a relatively unproblematic extension of inÂdividual proprietorship over land and sea through the activity of settlement, with sovereignty if it could be said to exist at all rooted in the collective power of assembled proprietors participating in increasingly global if no less imperial networks of free trade and navigation[919] This was certainly the world configured in enlightened narratives of interÂnational law and relations, and in theories of doux commerce.[920] [921] It was the world declared in the legal rhetoric of Thomas Jefferson’s Summary View of the Rights of British America and in the Declaration of Independence, listing as he does there a series of arbitrary and discretionary intrusions into natural rights to voyaging, settling, and trading. About the King, Jefferson is direct: â€?He has plundered our seas, ravaged our coasts’ and â€?constrained our fellow citizens taken captive on the high seas, to bear arms against their country’. Jefferson indicts the king for â€?refusing his assent to laws for establishing judiciary powÂers’, for making â€?judges dependent on his will alone for the tenure of their ofÂfices’, and for combining â€?with others to subject us to a jurisdiction foreign to our constitutions and unacknowledged by our laws’, by which he meant ParliaÂment and its management of colonial affairs in the Americas. In his draft of the Declaration, Jefferson went so far as to blame slavery on the crown: â€?DeterÂmined to keep open a market where men should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain excerable commerce’.[922] In making that argument, Jefferson sugÂgested that the prerogative powers of the crown had lost legitimacy under the corrupting influence of the Royal African Company, chartered in 1662 as part of the Stuart restoration and imperial restructuring that included the NavigaÂtion Acts proscribing the flow of numerated goods through imperial ports. JefÂferson was certainly exaggerating the historical reality of colonial legislative efforts against the institution of slavery, to say the least, but what is crucial to appreciate here is the politics of that move: tying the many issues of interest and property at stake in the imperial crisis to a wider history of constitutional conflict. The problem set up by this dynamic, in Jeffersonian and Jacksonian America, was one of a settler, commercial, and republican territorial empire’s deep and profound ambivalence about the continuities of discretionary preÂrogative powers, less in the office of the President than in the powers of the US Supreme Court, which include equity and admiralty jurisdiction[923] 4