1. For a recent influential theoretical consideration, see, Margaret Radin, Jane, “Property and Personhood,” Stanford Law Review 34 (1982): 957–1015.CrossRefGoogle Scholar Radin is concerned to distinguish between, on the one hand, purely instrumental and fungible kinds of property, and, on the other hand, more personal kinds of property that, she argues, ought to get higher levels of legal protection. I am inclined to agree with much of the critique of Radin's position offered by Stephen J. Schably, especially with his complaint that she suppresses conflict among different groups of persons and with his point that her analysis “both hides and glorifies power.” Schably, , “Property and Pragmatism: A Critique of Radin's Theory of Property and Personhood,” Stanford Law Review 45 (1993): 352.Google Scholar

2. Two classic legal realist articles stress the importance of state force in maintaining “private” property regimes: Hale, Robert, “Coercion and Distribution in a Supposedly Non-Coercive State,” Political Science Quarterly 38 (1923): 470–94CrossRefGoogle Scholar, and Cohen, Morris R., “Property and Sovereignty,” Cornell Law Quarterly 13 (1928): 8–30.Google Scholar For a more recent consideration focusing on the U.S. government and the property of Indian tribes, but also airing the theoretical issues, see, Singer, Joseph William, “Legal Theory: Sovereignty and Property” Northwestern University Law Review 86 (1991): 1–56.Google Scholar My own approach to these problems has been influenced by Robert Gordon, especially his “Historicism in Legal Scholarship,” Yale Law Journal 90 (1981): 1017–56; “Critical Legal Histories,” Stanford Law Review 36 (1984): 57–125; and, “The Paradoxes of Property,” forthcoming in Early Modern Conceptions of Property, ed. John Brewer and Susan Staves, Routledge.

3. Lawrence, and Fawtier Stone, Jeanne C., The Open Elite?: England, 1540–1880 (Oxford: Clarendon Press, 1984)Google Scholar; Clark, J. C. D., English Society, 1688–1832: Ideology, Social Structure and Political Practice during the Ancien Régime (Cambridge: Cambridge University Press, 1985).Google Scholar

4. Innes, Joanna, “Review Article: J. C. D. Clark, Social History and England's ‘Ancien Régime,’” Past and Present, no. 115 (1987): 165–200.CrossRefGoogle Scholar On the development of financing for this imperial state, see, Brewer, John, The Sinews of Power: War, Money and the English State, 1688–1783 (New York: Knopf, 1989).CrossRefGoogle Scholar

5. On ships, see, Reeves, John, A History of the Law of Shipping and Navigation (London, 1792)Google Scholar; Abbott, Charles, A Treatise of the Law Relative to Merchant Ships and Seamen, ed. Story, Joseph (orig. ed., London, 1802)Google Scholar; Newburyport: Edward Little & Co., 1810; Marsden, R. G., ed., Documents Relating to the Law and Custom of the Sea, Vol. 2 (1689–1767) (Naval Records Society, 1916)Google Scholar; Davis, Ralph, The Rise of the English Shipping Industry in the Seventeenth and Eighteenth Centuries (London: Macmillan, 1962).Google Scholar

6. See, Bruce, Anthony, The Purchase System in the British Army, 1660–1871 (London: Royal Historical Society, 1980)Google Scholar; Holmes, Geoffrey, Augustan England: Professions, State and Society, 1680–1730 (London: George Allen & Unwin, 1982), 262–74Google Scholar; and, Guy, Alan J., Oeconomy and Discipline: Officership and Administration in the British Army, 1714–63 (Manchester: Manchester University Press, 1985).Google Scholar

7. Hill, Christopher, The Century of Revolution, 1603–1714 (New York: W. W. Norton, 1961), 234–39CrossRefGoogle Scholar; Childs, John, The British Army of William III, 1689–1702 (Manchester: Manchester University Press, 1987), 5–6.Google Scholar

8. On the opium monopoly, see: House of Commons Sessional Papers of the Eighteenth Century, East India Affairs: Volume VI, ed. Lambert, Sheila (Scholarly Resources, Inc.: Willmington, Del., 1976)Google Scholar; The Writings and Speeches of Edmund Burke: Volume V, India: Madras and Bengal, 1774–1785, ed. Marshall, P. J. and Todd, William B. (Oxford: Clarendon Press, 1981), 270–86Google Scholar; Owen, David Edward, British Opium Policy in China and India (New Haven, Conn.: Yale University Press, 1934), 18–79Google Scholar; Singh, Narayan Prasad, The East India Company's Monopoly Industries in Bihar with Particular Reference to Opium and Saltpetre (1773–1833) (Muzaffarpur, Bihar: Sarvodaya Vangmaya, 1980).Google Scholar

9. Blackstone, William, Commentaries on the Law of England: A Facsimile of the First Edition of 1765–1769, ed. Katz, Stanley N., 4 vols. (Chicago: University of Chicago Press, 1979), 2:393.Google Scholar

10. “An Act for Preventing the Stealing of Dogs,” 10 Geo. 3, c. 18 (1770). In the earlier eighteenth century, before the act, civil actions in trover or trespass were possible against persons who misappropriated dogs. Francis Coventry, in The History of Pompey the Little; or, the Life and Adventures of a Lap-Dog (1751), creates an amusing chapter of legal puzzles when Lady Tempest visits her solicitor to explore legal remedies against a lady in possession of Pompey, a lap dog Lady Tempest thinks of as her own (bk. 2, c. 18).

11. “An Act for the further Limitation of the Crown, and better securing the Rights and Liberties of the Subject,” 12 & 13 Will. 3, c. 2, s. 3 (1700).

12. Blackstone, Commentaries 1:360.

13. On aliens, see also, Sir Chambers, Robert, A Course of Lectures on the English Law, 1767–1773, ed. Curley, Thomas M., 2 vols. (Madison, Wis.: University of Wisconsin Press, 1986), 1:270–76.Google Scholar

14. On the Huguenots, see Sundstrom, Roy A., “French Huguenots and the Civil List, 1696–1727: A Study of Alien Assimilation in England,” Albion 8 (1976): 219–35CrossRefGoogle Scholar; on Huguenots in William's army, see, Childs, British Army of William III, 132–38.

15. “An Act for Naturalizing Foreign Protestants,” 7 Anne, c. 5 (1709). See, Statt, Daniel, “The City of London and the Controversy over Immigration, 1660–1722,” The Historical Journal 33 (1990): 45–61.Google Scholar Statt shows that City opposition to Naturalization bills was substantially based on merchants' fears of new competition, and, especially, on their desire to preserve the customs duties imposed on alien imports, duties from which naturalized merchants' goods would have been exempt. Surprisingly, most of the broadsides and pamphlets against the naturalization bills—and even the opposition to private bills to naturalize particular merchants—seem to have been written by Richard Pierce, the City's Collector of Alien Duties from 1684 to 1727.

16. Defoe, Daniel, A Brief History of the Poor Palatine Refugees, lately Arriv'd in England… (1709; reprint ed., Los Angeles, Calif.: William Andrews Clark Memorial Library, 1964), 16.Google Scholar

17. Defoe, Palatine Refugees, 14.

18. “An Act for the better supply of Mariners and Seamen to serve in his Majesty's Ships of War, and on board Merchant Ships and other Trading Ships or Privateers,” 13 Geo. 2, c. 3, s. 2 (1740). 2 Geo. 3, c. 25 (1762) offered naturalization to foreign Protestants serving in the army in America for two years. 20 Geo. 3, c. 20, s. 3 (1780) accommodated foreign Protestants serving two years on board British ships in time of war.

19. “An Act for naturalizing such foreign Protestants, and others therein mentioned, as are settled, or shall settle, in any of his Majesty's Colonies in America,” 13 Geo. 2, c. 7. (1740). 20 Geo. 2, c. 24 (1747) offered naturalization to the Moravians in American on similar terms.

20. 7 Anne, c. 5, s. 3 ( 1708), and “An Act to explain a Clause in an Act … For Naturalizing Foreign Protestants, which relates to the Children of the natural-born Subjects of the Crown of England, or of Great Britain,” 4 Geo. 2, c. 21 (1731). For an earlier modification, see 25 Edw. 3, St. 2.

21. [Toland, John], Reasons for Naturalizing the Jews in Great Britain and Ireland, On the same foot with all other Nations (1714; reprint, Jerusalem, 1963), 17.Google Scholar

22. Endleman, Todd M., The Jews of Georgian England, 1714–1830: Tradition and Change in a Liberal Society (Philadelphia: Jewish Publication Society of America, 1979), 59Google Scholar; Perry, Thomas W., Public Opinion, Propaganda and Politics in Eighteenth Century England: A Study of the Jew Bill of 1753 (Cambridge, Mass.: Harvard University Press, 1962).Google Scholar

23. “An Act to explain the Act made in the Twelfth Year of the Reign of King William, intitled, An Act for the further Limitation of the Crown…” 1 Geo., st. 2, c. 4 (1714).

24. Cf. Krey, Gary Stuart de, A Fractured Society: The Politics of London in the First Age of Party, 1688–1715 (Oxford: Clarendon Press, 1985), 206.Google Scholar Statt, “Controversy Over Immigration,” 57–58, notes City regulations forbade those not free inhabitants of the City to practice a trade in London, and that “the City's statutes forbade even the son of an alien from becoming a freeman by apprenticeship to a trade.” The breakdown of guild control in the eighteenth century weakened such exclusions. For a verse protest on behalf of both native workers and merchants, see, Canary-Birds Naturaliz'd in Utopia: A Canto (London, [1709?]).

25. Defoe, Palatine Refugees, 11.

26. “An Act to prevent the Inconveniencies arising from seducing Artificers in the Manufactures of Great Britain into foreign Parts,” 5 Geo., c. 27, s. 3 (1718). Adam Smith, who wanted a freer market in labor, complained about this statute (and a related one, 23 Geo. 2, c. 13 [1750]) in An Inquiry into the Nature and Causes of the Wealth of Nations, ed. Campbell, R. H., Skinner, A. S., and Todd, W. B., 2 vols. (Oxford: Clarendon Press, 1976), 2:659Google Scholar: “It is unnecessary, I imagine, to observe, how contrary such regulations are to the boasted liberty of the subject, of which we affect to be so very jealous; but which, in this case, is so plainly sacrificed to the futile interests of our merchants and manufacturers.” These statutes also provided fines and imprisonment for those who “enticed” workmen to leave England. Cf. Oldham, James, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, 2 vols. (Chapel Hill: University of North Carolina Press, 1992), 690, 699–700, 720–22Google Scholar, for prosecutions of enticers in which the craftsmen appeared as crown witnesses.

27. In addition to the provision restricting political, civil, and military office holding in England, other statutes added other disabilities. For example, “An Act for the further Encouragement and Enlargment of the Whale Fishery …,” 22 Geo. 2, c. 45, s. 8 (1749), offered naturalization to foreign Protestants serving on whale ships for seven years, but in addition to the standard proviso, also prohibited beneficiaries from purchasing land in England and revoked their subject status if they resided outside the dominions of the king for one year. The Act of Settlement began the creation of an anomalous situation for Irish Protestants; although they were not subjects, they were permitted to purchase army commissions. The exigencies of military need in America first prompted statutes allowing foreign Protestant officers to have army commissions, but commissions only good in America, then an additional statute to permit naturalization. These officers were needed to train and lead the foreign soldiers for the Royal American Regiment. Cf. 25 Geo. 2, c. 5 (1742); 29 Geo. 2, c. 5 (1756); 2 Geo. 3, c. 25 (1761).

28. On the Royal African Company, see, Timothy Keirn, “Monopoly, Economic Thought, and the Royal African Company,” in Early Modern Conceptions of Property, ed. John Brewer and Susan Staves, forthcoming, Routledge. The African Company changed from a monopoly company to a regulated company. Adam Smith has important historical and critical discussions of both the monopoly companies and the regulated companies (including the Turkey Company and the Hudson's Bay Company) in The Wealth of Nations, bk. 4, c. 7; and ibid., bk. 5, pt. 3, art. 1.

29. See, Owen, John B., The Eighteenth Century, 1714–1815 (New York: W. W. Norton, 1974), 189–91, 205–7, 245–47, 254–55; Brewer, 114–26.Google Scholar

30. Davis, Rise of the English Shipping Industry, 259.

31. Singh, Monopoly Industries, 31, 80.

32. “An Act for the Encouraging and Increasing of Shipping and Navigation,” 12 Car. 2, C. 18 (1660). On the Navigation Acts, see, Reeves; Dickerson, Oliver M., The Navigation Acts and the American Revolution (Philadelphia: University of Pennsylvania Press, 1932)Google Scholar; and Palmer, Sarah, Politics, Shipping and the Repeal of the Navigation Laws (Manchester and New York: Manchester University Press, 1990).Google Scholar Studying the repeal of the acts in 1849, Palmer notes that support for them was still strong in the early 1840s: “Faced with the shipping industry, even convinced free traders faltered” (69).

33. Smith, Wealth of Nations 1:463.

34. In addition to the previously cited Navigation Act of 1660, “An Act for Preventing Frauds and Regulating Abuses in the Plantation Trade,” 7 & 8 Will. 3 (1698) c. 22, s. 17.

35. “An Act for preventing Abuses in the Sale of Shares of British Built Ships to Foreigners,” 13 Geo. 3. c. 26 (1773).

36. “An Act for the further Encouragement of British Mariners …” 34 Geo. 3, c. 68 (1794).

37. “An Act to prevent the delivering up of Merchant Ships,” 16 Car. 2, c. 6 (1664); “An Act to prevent the Delivery up of Merchant Ships, and for the Increase of good and servicible Shipping,” 22 & 23 Car. 2, c. 11 (1670); “An Act for the more effectual suppression of Piracy” 11 & 12 Will. 3, c. 7, s. Il (1700). Among the penalties for the masters of these merchant ships who declined to resist was forfeiture of any share they might have in the ship. Other statutes allowed merchant seamen disabled in fighting pirates or enemies admission to the Royal Navy's Greenwich Hospital: 10 Anne, c. 17, s. 20 (1711) and 8 Geo., c. 24 (1721).

38. Pillage was legalized by “An Act for Establishing Articles and Orders for the Regulating and better Government of his Majesty's Navies, Ships of War, and Forces by Sea,” 13 Car. 2, c. 9, s. 7 (1661). Crews were not supposed to take anything from prizes before judgment by the Admiralty court, “excepting that it shall be lawful for all Captains, Seamen, Soldiers, and others, serving as aforesaid, to take and to have to themselves as Pillage, without further or other accompt to be given for the same, all such goods and merchandizes (other than Arms, Amunition, Tackle, Furniture or Stores of such Ship) as shall be found by them, or any of them, in any Ship (they shall take in fight or prize) upon or above the Gundeck of the said Ship, and not otherwise.”

39. Marsden, Law and Custom of the Sea, 420. See, also, Meyer, W. R., “English Privateering in the War of 1688 to 1697” Mariner's Mirror 67 (1981): 259–72CrossRefGoogle Scholar; idem, “English Privateering in the War of the Spanish Succession, 1702–1713,” Mariner's Mirror 69 (1983): 435–46; Starkey, David J., “The Economic and Military Significance of British Privateering, 1702–83,” Journal of Transport History 9 (1988): 50–19CrossRefGoogle Scholar; and idem, “British Privateering against the Dutch in the American Revolutionary War, 1780–83,” in Studies in British Privateering, Trading, Enterprise and Seamen's Welfare, 1775–1900, ed. Fisher, Stephen, Exeter Papers in Economic History, No. 17 (Exeter: University of Exeter, 1987), 1–17.Google Scholar Meyer points out that substantial cash security (£1,500 to £3,000) was required in the 1690s before letters of marque were issued. Starkey calculates that in five wars between 1702 and 1783 12,737 letters of marque were issued to 6,987 actual vessels.

40. “An Act for the better securing the Trade of this Kingdom by Cruisers and Convoys,” 6 Anne, c. 13 (1708) abolished the Crown's direct economic interest in prizes beyond the legal and administrative costs of condemnation and sale and “shifted the onus of paying duties onto the buyers of prize goods,” Meyer, “Privateering in the War of the Spanish Succession,” 444. The statute also awarded each man on board a ship that took a prize a payment of five pounds out of government funds. See also Oldham's comments on Mansfield's prize cases collected in Mansfield Manuscripts, c. 10.

41. Guy, Oeconomy and Discipline, 90.

42. Ibid., 89. Anthony Bruce reaches a similar conclusion about the relation between the landed interest and the army that the purchase system helped ensure, Purchase System in the British Army, 65–94.

43. Guy, Oeconomy and Discipline, 94.

44. See Beattie, J. M., Crime and the Courts in England, 1660–1800 (Princeton, N.J.: Princeton University Press, 1986), 50–59, 156Google Scholar, on rewards for the apprehension of felons. According to Beattie, “it was only after 1689 that rewards emerged as a fundamental aspect of public policy and an established element in the system of criminal administration” (51). Some statutes established specified sums for the apprehension of particular kinds of felons; a person who apprehended a highway robber also had a claim to the robber's horse, arms, and money.

45. For example, “An Act for the better preservation of the game …” 22 & 23 Car. 2, C. 25, s. 2 (1670). On the game laws generally, see, Burn, Richard, The Justice of the Peace and Parish Officer, ed. Woodfall, William, 4 vols. (London, 1805)Google Scholar, s. v. “game”; Chitty, J., A Treatise on the Game Laws, and on Fisheries; with an Appendix, Containing all the Statutes and Cases on the Subject, 2 vols. (1812; reprint, N. Y.: Garland Publishing, 1979Google Scholar; Hay, Douglas, “Poaching and the Game Laws on Cannock Chase,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, Douglas et al. (New York: Pantheon Books, 1975), 189–253Google Scholar; and Munsche, P.M., Gentlemen and Poachers: The English Game Laws, 1671–1831 (Cambridge: Cambridge University Press, 1981).Google Scholar

46. Parliamentary History 32 (1796): 1003.

47. Locke, John, Two Treatises of Government, ed. Peter Laslett (London: Cambridge University Press, 1967), 2.5.45, p. 317.Google Scholar A similar point is made in Williams, Robert A. Jr, “Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law,” Arizona Law Review 31 (1981): 237, 250–53Google Scholar, and idem, The American Indian in Western Legal Thought: Discourses of Conquest (New York: Oxford University Press, 1990).

48. Hume, David, The History of England from the Invasion of Julius Caesar to the Revolution in 1688, 6 vols. (Liberty Classics, 1983), 5:47, 48.Google Scholar

49. Marshall, Peter J., The Impeachment of Warren Hastings (London: Oxford University Press, 1965), 186, 187.Google Scholar

50. Abbott, Merchant Ships and Seamen, 82, 83.

51. Graves v. Sawcer, Sir T. Raym. 15, 1 Keb. 38, 1 Lev. 29.

52. Strelly v. Winson, 1 Vern. 297, Skin. 230; Horn v. Gilpin, Amb. 255.

53. “The Minutes of what was offered by Warren Hastings… upon the matter of several charges …,” House of Commons Sessional Papers of the Eighteenth Century 59:651.

54. Gentleman's Magazine 52 (1782): 179.

55. Gentleman's Magazine 66 (1789): 1044–45; cf. Gentleman's Magazine 40:439, reporting another conviction.

56. Gentleman's Magazine 52 (1782): 224.

57. Staves, Susan, Married Women's Separate Property in England, 1660–1833 (Cambridge, Mass.: Harvard University Press, 1990), 88–89, 205, 211.CrossRefGoogle Scholar

58. “An Act for the further Increase and Encouragement of Shipping and Navigation,” 22 Geo. 3, c. 60 (1786). Refined upon by 34 Geo. 3, c. 42 & 68 (1794); 35 Geo. 3, c. 58 (1795); 37 Geo. 3, c. 63 (1797). Problems with earlier ship registry acts are discusssed in Jarvis, Rupert C., “Ship Registry: 1786/Ship Registry in Britain,” Maritime History 4 (1974): 12–30.Google Scholar

59. House of Commons Journals 22 (1735): 643. Testimony on a pending ship registration bill.

60. Abbott, Merchant Ships and Seamen, 27.

61. Davis, Rise of the English Shipping Industry, 312, 330–32.

62. Blackstone, Commentaries 1:327.

63. Bruce, Purchase System in the British Army, 130.

64. East India Affairs 6:273.

65. Parliamentary History 24 (1783): 124, 134–35; on the general conflict over “reform” of the company, see, Owen, John B., The Eighteenth Century, 1714–1815 (New York: W. W. Norton, 1974), 189–91, 205–7, 245–47, 254–55.Google Scholar

66. Parliamentary History 32 (1796): 997–1006; see also, Gentleman's Magazine 55 (1785): 605, 79 (1796): 520, for other comments on the dog tax.

67. Given that the use of dogs in the seventeenth century by the Spaniards in Latin America against the Indians had frequently been cited by the English as evidence of Spanish cruelty and barbarism, the use of dogs in the eighteenth century by the English against native peoples in the Americas was not approved by all observers. The dogs to which Sheridan referred were actually one hundred Cuban dogs imported into Jamaica, with their Spanish handlers, by order of the Jamaican General Assembly, to put down a Maroon rebellion. Writing in defense of the planters and as a white participant, Bryan Edwards noted that the planter legislators were aware that the military use of dogs might be criticized in England:

The Assembly were not unapprized that the measure of calling in such auxiliaries, and urging the canine species to the pursuit of human beings, would probably give rise to much observation and animadversion in the mother country…. The horrible enormities of the Spaniards in the conquest of the new world, would be brought again to remembrance. It is mournfully true, that dogs were used by those Christian barbarians against peaceful and inoffensive Americans, and the just indignation of all mankind has ever since branded, and will continue to brand, the Spanish nation with infamy, for such atrocities…. To these, and similar, objections it was answered, that the safety of the island, and the lives of the inhabitants were not to be sacrificed to the apprehension of perverse misconstruction or wilful misrepresentation in the mother country…. To hold it as a principle, that it is an act of cruelty or cowardice in man to employ other animals as instruments of war, is a position contradicted by the practice of all nations…. for wherein, it was asked, does the humanity of that doctrine consist, which allows the employment of troops of horse in the pursuit of discomfitted and flying infantry; yet shrinks at the preventive measure of sparing the effusion of human blood, by tracing with hounds the haunts of murderers, and rousing from ambush, savages more ferocious and blood-thirsty than the animals which track them? (Edwards, B., The Proceedings of the Governor and Assembly of Jamaica, in Regard to the Maroon Negroes: Published by order of the Assembly. To which is prefixed, an introductory Account…. (1796; reprint, Negro Universities Press: Westport, Conn., 1970), lxvi–lxviii.Google Scholar

On the use of dogs by British settlers against the native inhabitants of North America, see, Mastromarino, Mark A., “Teaching Old Dogs New Tricks: The English Mastiff and the Anglo-American Experience,” Historian 49 (1986): 10–25.CrossRefGoogle Scholar

68. Horace Walpole, Correspondence (1773), 35:464.

69. Dent's proposal to levy a tax on every dog of 2s. 6d. was defeated. Dowell, Stephen, in A History of Taxation and Taxes in England, From the Earliest Times to the Present Day, 3 vols. (1884; reprint, New York: Augustus M. Kelley, 1965)Google Scholar, comments that the House thought Dent's views “extravagant” and that “the provisions of the Bill confirmed this opinion, for the taxing clauses and the police regulations, taken together, amounted in the whole to a proposition for a general massacre” (3:261). Pitt opposed Dent's bill, but subsequently, pressed by the need for revenue created by the war with France, did introduce a luxury tax on dogs from which poor people were exempted: “An Act for granting to his Majesty certain Duties on Dogs,” 37 Geo. 3, c. 124 (1797). Cf. Munsche, Gentlemen and Poachers, 82–83.