The Journal of Modern History has published "Sir Edward Coke’s Infidel: Imperial Anxiety and the Origins of a 'Strange Extrajudicial Opinion,'" by Daragh Grant (University of Chicago). Here's the abstract:
In the middle of his report on the Case of the Post-nati, also known as Calvin’s Case (1608), Sir Edward Coke drew a distinction between the status of laws in conquered Christian and conquered infidel territories. Scholars have long interpreted this distinction as an expression of Coke’s interest in the Virginia Company, but the assumptions that underpin this colonial reading have recently been called into question. In this article, I revisit the influence of England’s early colonial ventures on Coke’s report. His remarks on infidels, I maintain, were intended to respond to a particular line of argument advanced before the Exchequer Chamber. Specifically, Coke aimed to foreclose the denization of Indigenous Americans in England as a result of colonial conquests, a possibility raised by counsel for both the plaintiff and the defense. Anxious about the potentially disordering implications of imperial expansion, Coke hoped to secure England’s legal order by excluding infidels from English subjecthood. But if this was what Coke intended by his remarks on infidels, what he did was furnish a new justification for colonial conquest that ran contrary to his own aims. In the conclusion of this article, I exploit this disconnect between Coke’s intentions and his actions to make a modest contribution to ongoing debates over the relationship between law and history.
Access to the full article appears to be behind a paywall.
-- Karen Tani