The "Economic Liberalism" of Sir Edward Coke

Abstract

In this case, the company's interpretation of the early common law would seem to be the more accurate. See pp. 1345-58 infra. 2. For one important exception to the standard political argument, see 4 D. Hu&dE HIsMRY OF ENGLAND 394 (rev. ed. 1850). As an early partisan of laissez.faire, Hume traced the origins of that theory back to the monopoly controversy and argued that the House of Commons had attempted to "give liberty to the trading part of the nation." 3. Following Fortescue, most Englishmen believed theirs to be a dominium politicum 1321 The Yale Law Journal effected by Coke and his "patriot" friends, who were known defenders of Parliament's jurisdiction in matters of taxation. Since the Crown received considerable sums of money in return for its favors, what Coke and his friends must have wanted was to remove the threat of royal financial independence. Though generally plausible, 4 this traditional analysis became suspect after the 1930's when historians began reinterpreting the struggles between Court and Country. Once they had settled upon an economic interpretation, historians found in the opposition to monopolies a suggestion 5 that Coke and the parliamentarians were early advocates of laissez-faire. This suggestion threatens now to become dogmatic assertion. Yet even proponents of the laissez-faire thesis differ significantly among themselves. Ephraim Lipson, 6 Eli Heckscher,7 and John N. Nef s for example, cautiously suggested that Coke's views provided a link between mercantilist and classical economic theory. They pointed to his "aversion" to statutes regulating the terms of enclosure and apprenticeship and his narrow construction of their provisions, the ability of later litigants to cite his opinions when contesting modern forms of trade et regale in which the Crown had a discretionary prerogative to act on the advice of Its counsellors and also an inherent and absolute prerogative in matters such as defense and foreign affairs. Exclusive trade privileges originated in an effort to encourage self-sufficiency and to make England's international position more secure, hence the Crown claimed an absolute right to grant such privileges-a right which Parliament challenged directly by enacting the Statute of Monopolies in 1623, 21 Jac. 1, c. 3. For a lucid and exceptionally good discussion of why Coke and the parliamentarians did not realize the radical implications of their action and of the extraordinary consensus in theory, see M. JUDsON, Tiit CRISIS OF THE CONSTrUTION (1949). 4. It could not explain, however, Coke's repugnance to monopolies prior to his break with the Court. Nor could it explain why adherents of the Court Party such as Lionel Cranfield and even Francis Bacon urged reform from above-the abrogation of certain odious monopolies by the King. For Cranfield's views, see D. WIrSON, Tim PiuvW CouNCILLORs IN THE HOUSE OF COMMONS, 1604-1629, at 45 (1940); for Bacon's views, see Advice to Sir George Villiers in 2 Tm Wops OF BACON 375, 385 (1841), where he describes moo.