Birthrights and the Due Course of Law

At the turn of the sixteenth and seventeenth centuries, the concept of law as the Englishman’s ‘birthright’ replaced older metaphors of ‘inheritance’. Arising in part from the story of Esau and Jacob, the term ‘birthright’ carried a specific theological charge. It enabled Englishmen to claim a spiritual right to specific procedures that defined law’s ‘due course’. In the 1640s and 1650s, these claims developed into calls for the widening of law’s due course. Though they failed to transform legal process at the time, the language of their claims contributed to durable vernacular demands that law should pursue the righteous ends they demanded of it.

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