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The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence

Published online by Cambridge University Press:  28 October 2011


One of the great, unrecognized ironies in Anglo-American constitutional history is that Sir Edward Coke, the seventeenth-century mythologist of the “ancient constitution” and the English jurist most celebrated in early America, did not believe that subjects enjoyed the common law and many related rights of Englishmen while overseas. “The common law,” Coke declared in Parliament in 1628, “meddles with nothing that is done beyond the seas.” The ancient constitution was an English constitution and, though non-English subjects of the English king could enjoy its liberties and privileges while in England, it did not apply to anyone outside that realm. The jurisprudence that gave intellectual shape to colonial resistance before, and to notions of the rule of law after, the American Revolution was not intended by its primary author to benefit Americans. Whether or not the ancient constitution existed time out of mind, it did not extend to land out of sight.

Copyright © the American Society for Legal History, Inc. 2003

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3. See, e.g., Price, Polly, “Natural Law and Birthright Citizenship in Calvin's Case (1608),” Yale Journal of Law and the Humanities 9 (1997): 7374Google Scholar (“Calvin's Case determined that all persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King”).

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15. See, e.g., Black, “The Case for the Colonists”; the sources cited in note 12, above.

16. Jack N. Rakove helpfully distinguishes among original meanings (contemporary definitions of key words), intent (the design of the framers), and understanding (how others comprehended the handiwork of the framers) in his study of the American federal constitution. Rakove, , Original Meanings: Politics and the Ideas in the Making of the Constitution (New York: Knopf, 1996), 711.Google Scholar

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21. See, e.g., Bacon, Francis, “An Expostulation to the Lord Chief Justice Coke,” in The Works of Francis Bacon, Lord Chancellor of England, 3 vols. (Philadelphia, 1859), 2:485–88.Google Scholar

22. T. F. T. Plucknett observed that, compared to previous reporters, Coke was “more concerned with the ‘resolutions’ of the judges, … their statements of general principle, making little distinction between those which were the basis of the decision and those which were only obiter. It might be possible to conclude that Coke was thinking (unconsciously perhaps) of the law in terms of substance rather than of procedure…” Plucknett, , “The Genesis of Coke's Reports,” Cornell Law Quarterly 27 (1942): 212.Google Scholar

23. Coke, Edward, The Institutes of the Law of England, 4 vols. (London: W. Clarke, 1817).Google Scholar The first three volumes were published in 1628 and the last posthumously in 1642.

24. Volumes 12 and 13 were published posthumously without prefaces. Plucknett, “The Genesis of Coke's Reports,” 211.

25. Coke, Edward, The Reports of Sir Edward Coke, ed. Thomas, John H. and Fraser, John F., new ed., 13 parts in 6 vols. (London: J. Butterworth and Son, 1826).Google Scholar On the development of reporting, see generally Baker, J. H., introduction to The Reports of Sir John Spelman, (London, 1978), 2:164–78.Google Scholar

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27. Coke, preface, 7 Coke's Reports iii.

28. Kettner, James H., The Development of American Citizenship, 1608–1870 (Chapel Hill: University of North Carolina Press, 1978), 1628Google Scholar; Price, “Natural Law and Birthright Citizenship in Calvin's Case.”

29. See text at note 70, below.

30. See Thompson, Martyn P., “The History of Fundamental Law in Political Thought from the French Wars of Religion to the American Revolution,” American Historical Review 91 (1986): 1104–5.CrossRefGoogle Scholar

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33. See generally Gough, Fundamental Law in English Constitutional History. Pocock concedes that the word constitution “has not been systematically cleared of anachronism” as applied to Coke's age because few people used the word “constitution” in the modern sense before 1660. Pocock, Ancient Constitution, 261 n. 8. See also Stourzh, Gerald, “Constitution: Changing Meanings of the Term from the Early Seventeenth to the Late Eighteenth Century,” in Conceptual Change and the Constitution, ed. Ball, Terence and Pocock, J. G. A. (Lawrence: University Press of Kansas, 1988), 3554Google Scholar; Holt, J. C., “The Ancient Constitution in Medieval England,” in The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law, ed. Sandoz, Ellis (Columbia: University of Missouri, 1993), 2256.Google Scholar

34. An excellent study of Coke's parliamentary career is White, Stephen D., Sir Edward Coke and “The Grievances of the Commonwealth,” 1621–1628 (Chapel Hill: University of North Carolina Press, 1979).Google Scholar

35. See Stoner, Common Law and Liberal Theory; Clark, J. C. D., The Language of Liberty, 1660–1832: Political Discourse and Social Dynamics in the Anglo-American World (Cambridge: Cambridge University Press, 1994).Google Scholar

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37. Coke, preface, 9 Coke's Reports iv; Coke, preface, 8 Reports xviii. Cf. O'Melinn, “Constitutionalism in the Seventeenth Century West Indies,” 112, n. 40 (noting that historian Barbara A. Black formulates “a theory of Coke's two bodies: the one recognizing the law as it existed, and the other—a constitutional body—seeing how the principles of law had to be extended to meet new circumstances”).

38. See Galloway, Bruce R., The Union of Scotland and England, 1603–1608 (Edinburgh: J. Donald, 1986)Google Scholar; Levack, Brian P., The Formation of the British State: England, Scotland, and the Union, 1603–1707 (Oxford: Clarendon Press, 1987)Google Scholar; Robertson, John, ed., A Union for Empire: Political Thought and the British Union of 1707 (Cambridge: Cambridge University Press, 1995).Google ScholarMason, Roger A., ed., Scots and Britons: Scottish Political Thought and the Union of 1603 (Cambridge: Cambridge University Press).CrossRefGoogle Scholar

39. Kettner, Development of American Citizenship, 16–28; Price, “Natural Law and Birthright Citizenship in Calvin's Case,” 73–145. The protections offered by the privileges and immunities clause in Article IV of the U.S. Constitution, guaranteeing equal treatment of one state's citizens in another state, is analogous to what James sought for the subjects of his multiple kingdoms.

40. “Moore's Report,” State Trials, 2:562–63. See also Francis Bacon, “A Speech Used by Sir Francis Bacon, In the Lower House of Parliament, Concerning the Article of Naturalization,” 14 Feb. 1607, The Works of Francis Bacon, ed. Spedding, James, Ellis, Robert L., and Heath, Douglas D., 14 vols. (London, 18611874), 10:307–25.Google Scholar

41. State Trials, 2:563.

42. State Trials, 2:564.

43. Rabb, Theodore K., Jacobean Gentleman: Sir Edwin Sandys, 1561–1629 (Princeton: Princeton University Press, 1998), 319–85Google Scholar; Craven, Wesley F., The Dissolution of the Virginia Company: The Failure of a Colonial Experiment (New York: Oxford University Press, 1932), 81ff.Google Scholar

44. On the distinction between dynastic realms and nations, see Anderson, Benedict, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. ed. (London: Verso, 1991).Google Scholar Sharper definition of the English political nation never precluded enthusiasm for colonies. Commonwealthmen like James Harrington, for example, retained a role for the empire in their ideal scheme. See James Harrington, The Commonwealth of Oceana; and Pocock, J. G. A., ed., A System of Politics (1652; reprint, New York: Cambridge University Press, 1992), 11, 16–17, 217–28.Google Scholar

45. “Suppose one man is owner of two pastures, with one hedge to divide them; the one pasture bare, the other fertile and good. A wise man will not quite pull down the hedge, but make gates to let the cattle in and out at pleasure; otherwise they will rush in in multitudes.” Cobbett, William, The Parliamentary History of England (London: T. C. Hansard, 1806), 1:1062Google Scholar (remarks of Mr. Fuller in 1606 debate). See also Cobbett's Parliamentary History, 1:1087 (Francis Bacon's reply), and generally, Colley, Linda, Britons: Forging the Nation, 1707–1837 (New Haven: Yale University Press, 1992), 117–22.Google Scholar

46. For this form of polity, characteristic of the early modern period, see Koenigsberger, H. G., “Dominium Regale or Dominium Politicum et Regale: Monarchies and Parliaments in Early Modern Europe,” in his Politicians and Virtuousi: Essays in Early Modern History (London: Hambledon Press, 1986), 125.Google Scholar

47. See Armitage, Ideological Origins of the British Empire, 128.

48. See DeRoover, Raymond A., Gresham on Foreign Exchange; An Essay on Early English Mercantilism with the Text of Sir Thomas Gresham's Memorandum: For the Understanding of the Exchange (Cambridge: Harvard University Press, 1949).Google Scholar

49. See Wormald, Jenny, “James VI and I: Two Kings or One?History 68 (1983): 187209.CrossRefGoogle Scholar Cf. Burgess, Absolute Monarchy and the Stuart Constitution.

50. Craven, Dissolution of the Virginia Company, 37; Morgan, Edmund S., American Slavery/American Freedom: The Ordeal of Colonial Virginia (New York: Norton, 1975), 7980.Google Scholar At home, the Crown's use of martial law on civilians led to a grievance in the 1628 Petition of Right. Kenyon, J. P., ed., The Stuart Constitution: Documents and Commentary (Cambridge: Cambridge University Press, 1966), 8384Google Scholar; Boynton, Lindsay, “Martial Law and the Petition of Right,” English Historical Review 79 (1964): 255–84.CrossRefGoogle Scholar By that time, however, martial law had been abandoned in Virginia. Craven, Dissolution of the Virginia Company, 70.

51. For the prevalence of the hierarchical metaphor in early modern England, see Lovejoy, Arthur O., The Great Chain of Being: A Study in the History of an Idea (Cambridge: Harvard University Press, 1936)Google Scholar; Greenleaf, W. H., Order, Empiricism and Politics: Two Traditions of English Political Thought (Westport, Conn.: Greenwood Press, 1980).Google Scholar

52. See Milsom, S. F. C., Historical Foundations of the Common Law, 2d ed. (London: Butterworths, 1981), 1136.Google Scholar

53. Coke, Edward, proeme to The Fourth Part of the Institutes of the Laws of England; Concerning the Jurisdiction of the Courts (1644; reprint, London: M. Plesher, 1817)Google Scholar, unpaginated. For recent use of the cartographic metaphor, see Christopher L. Tomlins, “The Legal Cartography of Colonial English Intrusions on the American Mainland in the Seventeenth Century,” ABF Working Paper #9816.

54. Coke, proeme, Fourth Institute.

55. See Judson, Margaret A., The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603–1645 (New Brunswick: Rutgers University Press, 1949).Google Scholar See also Sommerville, J. P., Politics and Ideology in England, 1603–1640, 2d ed. (London: Longman, 1999), 81100.Google Scholar On the Civil War as “the War of the Three Kingdoms,” see Beckett, J. C., The Making of Modern Ireland, 1603–1923 (London: Faber and Faber, 1981), 82103Google Scholar; Russell, Conrad, The Causes of the English Civil War (Oxford: Clarendon Press, 1990).Google Scholar Lauren Benton defines jurisdictional politics as “conflicts over the preservation, creation, nature, and extent of different legal forums and authorities.” Benton, , Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (New York: Cambridge University Press, 2001), 10CrossRefGoogle Scholar

56. Coke, , The First Part of the Institutes of the Laws of England, ed. Hargrave, Francis and Butler, Charles, 18th ed., 2 vols. (1628; London, 1823), 11b.Google Scholar

57. Coke, preface, 10 Coke's Reports xxviii.

58. Coke, First Institutes, 11b. See also Davies, John, The Question Concerning Impositions, Tonnage, Poundages … Fully Stated and Argued from Reason, Law and Policy (London, 1656), 23.Google Scholar See also Judson, Crisis of the Constitution, 246; Knafia, Louis, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge: Cambridge University Press, 1977), 164–67.CrossRefGoogle Scholar

59. Berman, Harold J., “The Origins of Historical Jurisprudence: Coke, Selden, Hale,” Yale Law Journal 103 (1994): 16511738.CrossRefGoogle Scholar

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61. Helgerson, Forms of Nationhood, 66–67.

62. Among other limitations, this common law world view deemphasized the feudalization of land tenures after the Conquest. But the point was to create a usable past rather than an objective history of England. See Pocock, Ancient Constitution; Burgess, Ancient Constitution; John P. Reid, “The Jurisprudence of Liberty: The Ancient Constitution in the Legal Historiography of the Seventeenth and Eighteenth Centuries,” in Roots of Liberty, 147–231.

63. Bowen, Lion and the Throne, 370–90.

64. For these controversies between Coke and the king, see Knafla, Law and Politics in Jacobean England, 123–81; Maitland, F. W., The Constitutional History of England (Cambridge: Cambridge University Press, 1920), 268–71Google Scholar; Holdsworth, William, Some Makers of English Law (Cambridge: Cambridge University Press, 1938), 127–31Google Scholar; Bowen, Lion and the Throne, 277–390.

65. See Gwyn, William B., The Meaning of the Separation of Powers: An Analysis of the Doctrine from Its Origins to the Adoption of the United States Constitution (New Orleans: Tulane University, 1965)Google Scholar; Jay, Stewart, Most Humble Servants: The Advisory Role of Early Judges (New Haven: Yale University Press, 1997), 173–76.Google Scholar

66. 77 Eng. Rep. 646 (1610).

67. “The censors cannot be judges, ministers and parties: judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of their forfeiture…” 11 Eng. Rep. 646, 652.

68. 77 Eng. Rep. at 652.

69. Cook, Harold J., “Against Common Right and Reason: The College of Physicians versus Dr. Thomas Bonham,” American Journal of Legal History 29 (1985): 301–22.CrossRefGoogle ScholarPubMed

70. See Lewis, John U., “Sir Edward Coke (1552–1633): His Theory of ‘Artificial Reason’ as a Context for Modern Basic Legal Theory,” Law Quarterly Review 84 (1968): 330–42Google Scholar (arguing that “Coke thought that the powers of Parliament were, or should be, identically those of the common law,” and new legislation was the working out of the law's “artificial reason”). Cf. Hinton, R. W. K., “The Decline of Parliamentary Government under Elizabeth I and the Early Stuarts,” Cambridge Historical Journal 13 (1957): 124, 127–29CrossRefGoogle Scholar (arguing that the growth of “unparliamentary government” under the Stuarts compelled opponents to embrace fundamental law).

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73. See James Harrington, Oceana in The Political Works of James Harrington, ed. Pocock, J. G. A. (Cambridge: Cambridge University Press, 1977).Google Scholar Cf. Tawney, R. H., The Agrarian Problem in the Sixteenth Century (New York: Harper and Row, 1967), 192–93.Google Scholar

74. See Reid, John Phillip, The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988), 6873.Google Scholar

75. State Trials, 2:640, 77 Eng. Rep. at 399.

76. Cobbett's Parliamentary History, 1:1082–83.

77. See Baker, J. H., The Law's Two Bodies: Some Evidential Problems in English Legal History (Oxford: Oxford University Press, 2001), 5253.CrossRefGoogle Scholar

78. The Stuart kings commissioned this special court—“the Exchequer Chamber”—several times in the early seventeenth century to obtain definitive public law rules that would have effect throughout their territories. Pawlisch, Hans S., Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge: Cambridge University Press, 1985), 4344.CrossRefGoogle Scholar

79. An exception existed for the “necessary habitation” by an “alien friend” to encourage “trade and traffick, which is the life of every island.” State Trials, 2:638.

80. Two justices, Walmsley and Foster, dissented. See State Papers 14/34 (microfilm), Public Record Office, Kew Gardens, London.

81. Lord Chancellor Ellesmere published his opinion: The Speech of the Lord Chancellor of England, in the Exchequer Chamber, Touching the Post-Nati (London, 1609).

82. The classic study is Kantorowicz, Ernst H., The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957).Google Scholar

83. State Trials, 2:624, 77 Eng. Rep. at 388.

84. State Trials, 2:624, 77 Eng. Rep. at 394. For analysis of Coke's resort to natural law, see Kim, Keechang, “Calvin's Case (1608) and the Law of Alien Status,” Journal of Legal History 17 (1996): 155–71.CrossRefGoogle Scholar

85. State Trials, 2:655, 77 Eng. Rep. at 408.

86. Ligeance was spatial, temporal, and genetic. First, the parents of the person had to be “under the actual obedience of the king” at the time of birth. Second, the person had to be born “within the king's dominion.” (There was an exception for those born to Englishmen, such as military and diplomatic personnel, serving abroad.) Third, time distinguished antenati from postnati: “for he cannot be a subject born of one kingdom that was born under the ligeance of a king of another.” State Trials, 2:639–40, 77 Eng. Rep. at 408. In his Institutes, Coke noted an exception for constitutional changes in the monarchy. Jones, D. M., “Sir Edward Coke and the Interpretation of Lawful Allegiance in Seventeenth-Century England,” History of Political Thought 7 (1986): 331.Google Scholar

87. Aliens could become subjects or denizens with the right to hold land. Naturalization was by act of Parliament; endenization was by the king alone and conveyed fewer rights. However, naturalization in one of the king's dominions beyond England did not transfer into his other dominions. If you were naturalized by the Irish Parliament or in the American colonies, for example, you were not an English subject who could hold land in England. Craw v. Ramsey, 17A Eng. Rep. 1072 (1670). A 1740 Act of Parliament permitted colonial naturalization to have effect throughout the empire upon Board of Trade review. Kettner, Development of American Citizenship, 103. Naturalization in England did entitle one to hold land in overseas territories.

88. The exception was Ireland: writs of error ran from the Irish courts to the English court of King's Bench, though this was controverted in Ireland. Flaherty, Martin S., “The Empire Strikes Back: Annesley v. Sherlock and the Triumph of Imperial Parliamentary Supremacy,” Columbia Law Review 87 (1987): 593622.CrossRefGoogle Scholar See also note 129, below.

89. State Trials. 2:643. 77 Eng. Rep. at 401.

90. The example Coke used was “the kings' writ to command any of his subjects, residing in any foreign country, to return into any of the king's own dominions.” State Trials, 2:643, 77 Eng. Rep. at 401. Chief Justice John Vaughan later clarified the distinction by defining the remedial writs as those vindicating “the particular rights and properties of the subject” and that did not issue to dominions beyond England because “they have their particular laws, [and] consequently they must have their particular mandates or writs to order them.” John Vaughan, Process into Wales. 124 Eng. Rep. 1130. 1132 (1706). See also Radin, Max, “The Rivalry of Common-Law and Civil Law Ideas in the American Colonies,” in Law: A Century of Progress, 1835–1935 (New York: New York University Press, 1937), 2:410.Google Scholar

91. Compare Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999)Google Scholar, with Anghie, Antony, “Francisco de Vitoria and the Colonial Origins of International Law,” in Laws of the Postcolonial, ed. Smith, Eve Darian and Fitzpatrick, Peter (Ann Arbor: University of Michigan Press, 1999). 89107.Google Scholar At about the same time, Grotius wrote the orthodox statement of the right of free passage for peaceful purposes among European nations. Grotius, , De Jure Belli ac Pads, trans. Kelsey, Francis W., ed. Scott, James B. (New York: Oceana Publications, 1964)Google Scholar, bk. 2, chap. 2, sec. 13. This, of course, did not guarantee equal subjectship among nations.

92. See, e.g., The Princeton Principles on Universal Jurisdiction (2001),

93. Though Coke claimed that he provided “the right understanding” of the holding and that there was little “variety of opinions” among the judges. State Trials, 2:613, 658, 77 Eng. Rep. at 381, 410. But see note 80, above.

94. See James, D. G., The Dream of Prospero (Oxford: Clarendon Press, 1967), 8388Google Scholar; Wright, Louis B., Religion and Empire: The Alliance between Piety and Commerce in English Expansion, 1558–1625 (Chapel Hill: University of North Carolina Press, 1943).Google Scholar

95. See Bowen, The Lion and the Throne, 190–217, 343.

96. [Robert Johnson,] Nova Britannia: Offering Most Excellent Fruites by Planting in Virginia (London, 1609).

97. Beckett, The Making of Modern Ireland, 45–48.

98. Coke, then a judge on Common Pleas, did not draft the new charter.

99. The code was entitled the “Lawes Divine, Morall, and Martial” — “Mostly martial,” quipped historian Edmund S. Morgan. Morgan, American Slavery/American Freedom, 79. See also Craven, Wesley F., The Southern Colonies in the Seventeenth Century, 1607–1689 (Baton Rouge: Louisiana State University Press, 1949), 81, 85–87Google Scholar; Williams, Robert A. Jr, “The English Conquest of Virginia,” in The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), 208–12.Google Scholar See also Konig, David T., “‘Dale's Law’ and the Non-Common Law Origins of Criminal Justice in Virginia,” American Journal of Legal History 26 (1982): 354–75CrossRefGoogle Scholar, and generally Webb, Stephen S., The Governors General: The English Army and the Definition of the Empire, 1569–1681 (Chapel Hill: University of North Carolina Press, 1979).Google Scholar

100. Bowen, Lion and the Throne, 194.

101. Konig, David T., “Colonizing and the Common Law in Ireland and Virginia, 1569–1634,” in The Transformation of Early American History: Society, Authority, and Ideology, ed. Henretta, James A., Kammen, Michael, and Katz, Stanley N. (New York: Knopf, 1991), 7092.Google Scholar

102. Attorney General Francis Bacon referred to the Indies once in argument. State Trials, 2:590–91. And to allay Parliamentary fears of Scottish immigration, Bacon pointed out that “our colonies and plantations” would offer a haven for poor Scots. Cobbett's Parliamentary History, 1:1087.

103. It remained the starting point for conceptualizing the empire into the twentieth century. See, e.g., Keith, Arthur B., Dominions as Sovereign States: Their Constitutions and Governments (London: Macmillan, 1938), 111.Google Scholar

104. See Madden, Frederick, “Some Origins and Purposes in the Formation of British Colonial Government,” in Essays in Imperial Government Presented to Margery Perham, ed. Robinson, Kenneth and Madden, Frederick (Oxford: B. Blackwell, 1963), 10.Google Scholar

105. Berman, “Origins of Historical Jurisprudence,” 1678–89.

106. State Trials, 2:641. See also State Trials, 2:612, 77 Eng. Rep. at 400 (claiming that the advocates “told no strange histories, cited no foreign laws, produced no alien precedents”).

107. See Madden, A. F. McC., “1066, 1776, and All That: The Relevance of the English Medieval Experience of ‘Empire’ to Later Constitutional Issues,” in Perspectives of Empire: Essays Presented to Gerald S. Graham, ed. Flint, John E. and Williams, Glyndwr (London: Longman, 1973), 926Google Scholar; Goebel, Julius Jr, “The Matrix of Empire,” introduction to Smith, Joseph H., Appeals to the Privy Council from the American Plantations (New York: Columbia University Press, 1950), xii–lxi.Google Scholar

108. Cf. Seeley, J. R., The Expansion of England (1883; reprint, Chicago: University of Chicago Press, 1971), 1213Google Scholar (observing that “[w]e seem, as it were, to have conquered and peopled half the world in a fit of absence of mind. While we were doing it, that is in the eighteenth century, we did not allow it to affect our imaginations or in any degree to change our ways of thinking …”).

109. Lord Chancellor Ellesmere criticized Coke's reasoning in his own opinion. State Trials, 2:659–96.

110. State Trials, 2:612, 77 Eng. Rep. at 381 (paraphrasing Chaucer's Parliament of Fowls). Suggestive here is J. C. Holt's discussion of the mythology of the Magna Carta, to which Coke substantially contributed. Holt, , Magna Carta, 2d ed. (Cambridge: Cambridge University Press, 1992), 122.CrossRefGoogle Scholar

111. The doctrine of conquest was “among the accepted leading ideas of European civilization.” Sutherland, Donald, “Conquest and Law,” Studia Gratiana 15 (1972): 3351.Google Scholar See also Pawlisch, Hans S., “Sir John Davies, the Ancient Constitution and Civil Law,” Historical Journal 23 (1980): 689702.CrossRefGoogle Scholar

112. State Trials, 2:638–39, 77 Eng. Rep. at 398.

113. State Trials, 638; 77 Eng. Rep. at 398. Coke adhered to a harsher version of dispossession than advocated by the Spanish theologian Francisco de Vitoria. For the latter, see Pagden, Anthony, “Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over Property Rights of the American Indians,” in The Languages of Political Theory in Early-Modern Europe, ed. Pagden, Anthony (New York: Cambridge University Press, 1987), 7998.CrossRefGoogle Scholar

114. State Trials, 2: 639, 77 Eng. Rep. at 398.

115. See, e.g., Wilson, James, “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” in The Collected Works of James Wilson, ed. McCloskey, Robert G. (Cambridge: Belknap Press of Harvard University Press, 1967), 2:721–46Google Scholar; Adams, John, “Novanglus,” 27 March 1775, in Novanglus and Massachusettensis (Boston: Hews and Goss, 1819), 111–12.Google Scholar See also Kettner, Development of American Citizenship, 131–72.

116. See Schuyler, Parliament and the British Empire, 1–39; Goebel, Julius Jr, “Book Review: Parliament and the British Empire, by Robert L. Schuyler,” Columbia Law Review 30 (1930): 273–76.CrossRefGoogle Scholar

117. Black, “The Case for the Colonies”; Mcllwain, The American Revolution: A Constitutional Interpretation.

118. Black, “The Case for the Colonies,” 1181. See also Greene, Jack P., Peripheries and Center: An Interpretation of British-American Constitutional Development, 1607–1788 (Athens: University of Georgia Press, 1986), 2324.Google Scholar

119. Between 1494 and 1782, Irish parliamentary legislation had to be preapproved by the king under Poynings' law, an institution unique to Ireland. Poynings' Law, 10 Hen. VII, c. 4 (1485); repealed 21 & 22 Geo. Ill, c. 47 (1781). See Beckett, The Making of Modern Ireland, 51, 225. The “naming” doctrine was generally accepted, especially in the metropole, but occasionally rejected by Irish legal thinkers. See Jacqueline Hill, “Ireland without Union: Molyneux and His Legacy,” in A Union for Empire, 271–96; Flaherty, “The Empire Strikes Back.”

120. State Trials, 2:640–47, 77 Eng. Rep. at 399–104.

121. Barbara Black describes the position well in “The Case for the Colonies,” 1168–74. On the transformation of Parliament, see Notestein, Wallace, The Winning of the Initiative by the House of Commons (London: Oxford University Press, [1924])Google Scholar; Russell, Conrad, Parliaments and English Politics, 1621–1629 (Oxford: Oxford University Press, 1979), 4546.CrossRefGoogle Scholar In addition, the two sides of the historiographical debate disagree in their interpretation of the Glorious Revolution. Mcllwain believed that the principle of parliamentary supremacy, which emerged after 1688, was a metropolitan doctrine only, while Schuyler maintained that it extended throughout the empire. Mcllwain, American Revolution, 107–11; Schuyler, Parliament and the British Empire, 25–26.

122. Consensus among historians now is that Parliament could legislate upon external, but not internal, aspects of the overseas territories, and there is nothing in Coke to dispute this—though not enough to support it fully either. Reid, John P., The Constitutional History of the American Revolution: The Authority to Legislate (Madison: University of Wisconsin Press, 1991), 32Google Scholar; Reid, , The Constitutional History of the American Revolution: The Authority to Tax (Madison: University of Wisconsin Press, 1987), 42Google Scholar; Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967), 213 n. 55Google Scholar; Greene, Jack P., Peripheries and Center: Constitutional Developments in the Extended Polities of the British Empire and America, 1607–1788 (Athens: University of Georgia Press, 1986), 88.Google Scholar

123. Wheeler, Harvey, “Calvin's Case (1608) and the Mcllwain Schuyler Debate,” American Historical Review 61 (19551956): 597.Google Scholar

124. For these domestic struggles in the years preceding the American Revolution, see Spector, Margaret M., The American Department of the British Government, 1768–1782 (New York: Columbia University Press, 1940).Google Scholar

125. Cf. Wheeler, “Calvin's Case,” 589 (noting that Coke ruled in favor of the Crown but did not hold that “the union of crowns caused a resulting degree of union between the laws and institutions of England and Scotland, thus giving judgment for James without actually awarding defeat to the Commons”).

126. See generally Pocock, Ancient Constitution.

127. Coke, , preface to Le Tierce Part des Reportes del Edward Coke (London, 1602)Google Scholar, unpaginated. This analysis also suggests why Coke silently borrowed the Continental distinction between conquered lands belonging to Christians on the one hand and infidels on the other: Christians, such as the eleventh-century Anglo-Saxons, retained their law; infidels did not. In the eighteenth century Lord Mansfield rejected the distinction as “absurd” and a product of “the mad enthusiasm of the crusades.” Campbell v. Hall, 98 Eng. Rep. 1045, State Trials, 20:323 (K.B. 1774). For the Continental distinction, see Pagden, Anthony, Lords of All the World: Ideologies of Empire in Spain, Britain and France, c. 1500-c. 1800 (New Haven: Yale University Press, 1995), 9194.Google Scholar

128. Compare Maitland, English Law and the Renaissance, with J. H. Baker, “English Law and the Renaissance.”

129. See Smith, Appeals to the Privy Council, 10–11. The exception was the controversial practice whereby the English King's Bench took writs of error from Ireland until such jurisdiction was abolished in 1783. State Trials, 2:639, 77 Eng. Rep., at 398; Schuyler, Parliament and the British Empire, 64–61, 82–83, 87, 99–100.

130. The first were Barbadian royalists during the Civil War. Schuyler, Parliament and the British Empire, 106–16.

131. State Trials, 2:639, 77 Eng. Rep. at 398.

132. State Trials, 2:643, 77 Eng. Rep. at 401. Note that, according to Coke, only emigrants to conquered “Christian kingdom[s]” would enjoy these property rights. State Trials, 2:639, 77 Eng. Rep. at 398. But the logic could extend to other dominions too.

133. For this process, see Smith, Appeals to the Privy Council.

134. See Murrin, John M., “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in Colonial America: Essays in Politics and Social Development, ed. Katz, Stanley N. and Murrin, John M., 3d ed. (New York: Knopf, 1983)Google Scholar; Eben Moglen, Settling the Law: Legal Development in Provincial New York, 1664–1776 (forthcoming).

135. See also Hulsebosch, Daniel J., “Writs to Rights: ‘Navigability’ and the Transformation of the Common Law in the Nineteenth Century,” Cardozo Law Review 23 (2002): 10491106Google Scholar; Milsom, S. F. C., “The Nature of Blackstone's Achievement,” Oxford Journal of Legal Studies 1 (1981): 4.CrossRefGoogle Scholar

136. On the 1618 reforms, see Craven, Dissolution of the Virginia Company, 47–80.

137. State Trials, 2:638. Coke's proposed compromise between domestic liberties and native law suggests both similarities and differences between the role of Calvin's Case in the British empire and the Insular Cases in the overseas territories of the United States. See Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution, ed. Nurnett, Christina Duffy and Marshall, Burke (Durham: Duke University Press, 2001).CrossRefGoogle Scholar

138. See Washbrook, D. A., “India, 1818–1860: The Two Faces of Colonialism,” in The Oxford History of the British Empire, ed. Porter, Andrew (New York, 1998), 3:398, 407, 415Google Scholar; Hulsebosch, Daniel J., “Imperia in Imperio: The Multiple Constitutions of Empire in New York, 1750–1777,” Law and History Review 16 (1998): 366–68.CrossRefGoogle Scholar

139. On advowson, see Blackstone, Commentaries, 2:21–22.

140. On the emergence of an heir's right, see Milsom, Historical Foundations, 2–3, 119–22. Cf. McCaffrey, Edward J., “The Uneasy Case for Wealth Transfer Taxation,” Yale Law Journal 104 (1994): 283365CrossRefGoogle Scholar; Epstein, Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard University Press, 1985).Google Scholar

141. Baker, J. H., “Personal Liberty under the Common Law of England,” in The Origins of Modem Freedom in the West, ed. Davis, R. W. (Stanford: Stanford University Press, 1995), 178202.Google Scholar A franchise, wrote F. W. Maitland, was “a portion of royal power in the hands of a subject,” granting him immunity from some royally imposed burden or the power to exercise some aspect of royal power. Pollock, Frederick and Maitland, Frederic W., The History of English Law before Edward I, 2d ed. (Cambridge: Cambridge University Press, 1952), 1:384.Google Scholar See also [Rastall, John,] Les Termes de la Ley: or, Certain Difficult and Obscure Words and Terms of the Common and Statute Law of England (London, 1721), 232, 280Google Scholar (defining franchise and liberty in jurisdictional terms). S. F. C. Milsom expressed an idea similar to Baker's in the tone of legal realism when he declared that “[t]he life of the common law has been in the abuse of its elementary ideas.” Milsom, Historical Foundations, 6.

142. An excellent example is the abstraction of Darcy v. Allen, which merely held that the common law courts had no jurisdiction over the interpretation of royal monopolies but was later expanded to stand for the proposition that the common law abhorred monopoly and even that monopolies were illegal under English law. Coke's report of the decision abetted the more abstract interpretation. Corre, Jacob I., “The Argument, Decision, and Reports of Darcy v. Allen,” Emory Law Journal 45 (1996): 12611327.Google Scholar

143. For this way of understanding the history of ideas, see Skinner, Quentin, “Meaning and Understanding in the History of Ideas,” History and Theory 8 (1969): 153.CrossRefGoogle Scholar On the connection between colonization and rigid substantive law, including reported precedents and treatises, see Pawlisch, Sir John Davies and the Conquest of Ireland, 42–45; Hulsebosch, “Writs to Rights”.

144. See Plucknett, “The Genesis of Coke's Reports” (concluding that Coke was less interested than previous reporters in pleadings and more in judicial “statements of general principle, making little distinction between those which were the basis of the decision and those which were only obiter”).

145. Coke, preface, 5 Coke's Reports v.

146. Commons Debates, 1628, 2:357–58.

147. On the equation of liberty with property in early America, see Reid, John P., The Constitution History of the American Revolution: The Authority of Rights (Madison: University of Wisconsin Press, 1986), 103–13Google Scholar; Rakove, Jack N., Declaring Rights: A Brief History with Documents (Boston: Bedford Books, 1998), 20.Google Scholar

148. See Williams, “English Conquest of Virginia,” 193–225. See generally Jennings, Francis, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (Chapel Hill: University of North Carolina Press, 1975).Google Scholar

149. See Pagden, Lords of All the World, 93–94.

150. “A thing with no owner belongs to the first finder.” Anthony Pagden notes that the European empires rarely employed this concept to legitimize their colonies because it was too fictitious as applied to the Americas. Pagden, Lords of All the World, 89–94. Cf. Seed, Patricia, Ceremonies of Possession in Europe's Conquest of the New World, 1492–1640 (New York: Cambridge University Press, 1995)Google Scholar (arguing that most Britons preferred to view the American colonists as settlers rather than conquerors). For a classical statement of the three ways to obtain property—settlement, conquest, and the due process of law— see Cicero, , De officiis, trans. Miller, Walter (Cambridge: Harvard University Press, 1968), 23 (Book I, viii).Google Scholar

151. Locke, John, Two Treatises of Government, ed. Laslett, Peter, rev. ed. (New York: Mentor, 1963), 343, 336.Google Scholar Laslett notes that Locke drafted the Second Treatise during 1679–80, and it circulated at least among a few readers soon after. Laslett, introduction to Two Treatises, 58–79. James Tully notes that reports about the Amerindians influenced Locke's theory of property. Tully, , An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), 137–76CrossRefGoogle Scholar; Pagden, Lords of All the World, 77. The point here is that Locke's theory may, in turn, have influenced how colonists viewed the process of settlement.

152. As Barbara A. Black points out, “the doctrine of settlement cannot be deduced from Calvin's Case. It is a creative extension, by way of judicial legislation, of the principles behind Coke's own bit of judicial law-making in Calvin's Case.” Black, “The Case for the Colonies,” 1206 (emphasis in the original).

153. The editors of an influential sourcebook of the British Empire, for example, assume that the colonies were settlements rather than conquered provinces. “[W]hile the principle that English law applied in English colonies was accepted in general, its specific application was not at all clear.” Madden, Frederick with Fieldhouse, David, eds., Select Documents on the Constitutional History of the British Empire and Commonwealth System (Westport, Conn.: Greenwood Press, 1985), 2:190.Google Scholar

154. 124 Eng. Rep. 1072, 1073 (K.B. 1681). See also Baker, J. H., “United and Knit to the Imperial Crown': An English View of the Anglo-Hibernian Constitution in 1670,” in Mysteries and Solutions in Irish Legal History, ed. Greer, D. S. and Dawson, N. M. (Dublin: Four Courts Press, 2001), 7395.Google Scholar

155. 124 Eng. Rep. at 1084.

156. Ibid.

157. Ibid., 1076.

158. Ibid., 1074 (emphasis added).

159. Blankard v. Galdy, 87 Eng. Rep. 356 (1691) (holding that an English statute forbidding the sale of offices did not apply to Jamaica).

160. 87 Eng. Rep. at 361–62.

161. Ibid., 361.

162. Dutton v. Howell, 1 Eng. Rep. 17, 19 (House of Lords, 1694) (emphasis in the original).

163. 1 Eng. Rep. at 21, 22 (emphasis in the original).

164. Smith v. Brown and Cooper, 91 Eng. Rep. 566 (1702). For the use of this dictum in Somersett's Case, see Oldham, James, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 2:1221–40.Google Scholar

165. 91 Eng. Rep. at 566–67.

166. Mr West's Opinion, Opinions of Eminent Lawyers on Various Points of English Jurisprudence (London: Reed and Hunter, 1814), 1:194–95.

167. Dutton v. Howell, 1 Eng. Rep. 17 (1694). The case is discussed above in the text after note 161.

168. 2 Peere Williams 75 (1740–49). The industrious Smith reported that “we have found no clue as to the appeal upon which this determination was made.” Smith, Appeals to the Privy Council, 482–83.

169. A sober review of these opinion letters and case dicta is Smith, Appeals to the Privy Council, 465–87. cf. Reid, Authority of Rights, 114–31.

170. Peere Williams Reports, 3 vols. (1740–49); Smith, Appeals to the Privy Council, 483.

171. See, e.g., Madden and Fieldhouse, Select Documents on the Empire, 1:192 n.1.

172. Blackstone, William, Commentaries on the Laws of England, 4 vols. (1765–69; Oxford: Printed for John Hatchard and Son, 1822), 1:105–6.Google Scholar

173. Rex v. Vaughan, 98 Eng. Rep. 308, 311 (1769).

174. Campbell v. Hall, 98 Eng. Rep. 1045, 1049–50. See also Kettner, Development of American Citizenship, 59, 131–72. For Mansfield's support of parliamentary regulation of the colonies, see House of Lords Debate, 7 Feb. 1775, in The Parliamentary History of England, from the Earliest Period to the Year 1803, comp. T. C. Hansard, vol. 18 (London, 1813), col. 269.

175. This conclusion discounts the undocumented decision in 2 Peere Williams 75.

176. First Charter to Virginia (1606), in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of … the United States of America, ed. Thorpe, Francis N. (Washington, D.C., 1909), 7:3788.Google Scholar Gilbert's charter is most explicit: settlers and their children shall “enjoy all the priveleges [sic] of free denizens and persons native of England, and within our allegiance.” Letters Patent to Sir Humfrey Gylberte(1578), in ibid., 1:51. A similar formulation was repeated in most charters that followed. All are available in Thorpe's collection.

177. See, e.g., Duane, James, “Address before the Committee to State the Rights of the Colonies” [9/8/1774], Letters of Members of the Continental Congress, ed. Burnett, Edmund C. (Eashington, D.C.: The Carnegie Foundation of Washington, 1921), 1:2425.Google Scholar Some historians make a similar mistake. See, e.g., Draper, Theodore, A Struggle for Power: The American Revolution (New York: Times Books, Random House, 1996), 33Google Scholar; Chafee, Zachariah Jr, “Colonial Courts and the Common Law,” in Essays in the History of Early American Law, ed. Flaherty, David H. (Chapel Hill: University of North Carolina Press, 1969), 56Google Scholar; Andrews, Charles M., Colonial Period of American History (New Haven: Yale University Press, 1934), 1:8586.Google Scholar

178. For the right to travel among and settle within the states without discrimination, see Saenz v. Roe, 526 U.S. 489 (1999).

179. For the British Empire, this was the issue in Somersett's Case. See Oldham, The Mansfield Manuscripts, 1221–25, 1229–38. For the same problem in the early United States, see Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of North Carolina Press, 1981).Google Scholar

180. This clause became standard for trading companies in the sixteenth century. Under the Virginia Company's 1609 charter, for example, the governing council was to make law “as near as conveniently may be,… agreeable to the laws, statutes, government, and policy of … England.” Goebel, Julius Jr and Raymond Naughton, T., Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664–1776) (1944; reprint, Montclair, N.J.: Patterson Smith, 1970), xxi–xxii, 3–6, 13.Google Scholar

181. See, e.g., Chafee, “Colonial Courts and the Common Law,” 56–57.

182. Again, colonial statutes upholding slavery are good examples.

183. See Smith, Appeals to the Privy Council, 464–65, 523–31.

184. White, Grievances of the Commonwealth, 216. White notes that Coke, then seventy-six, was not the “principal proponent” of the Petition, but “still played an active role in every stage of the Commons's proceedings on the petition.” Ibid., 224–25.

185. White, Grievances of the Commonwealth, 213–74.

186. See Morgan, American Slavery/American Freedom, 79; Craven, Southern Colonies in the Seventeenth Century, 81, 85–87.

187. Commons Debates, 1628, 3:487. For other seventeenth-century parliamentarians (including John Pym) who denied that the colonists enjoyed English rights, see Kupperman, Karen O., “The Beehive as a Model for Colonial Design,” in America in European Consciousness, 1493–1750, ed. Kupperman, Karen O. (Chapel Hill: University of North Carolina Press, 1995), 285–86.Google Scholar

188. It was in no one's interest to do so, till some colonies sought to shield themselves from unwanted parliamentary legislation during the Civil War, then during the Restoration, and again in the 1760s and 1770s.

189. See Russell, Causes of the English Civil War, 26–57; Sommerville, Royalists and Patriots, 134–75.

190. Colley, Britons.

191. For the concept of a “Greater Britain” of white settler colonies, see Seeley, J. R., The Expansion of England (1833; reprint, Chicago: University of Chicago Press, 1971), 8.Google Scholar See also Armitage, David, “Greater Britain: A Useful Category of Historical Analysis?American Historical Review 104 (1999): 427–45CrossRefGoogle Scholar; Gould, Eliga H., “A Virtual Nation: Greater Britain and the Imperial Legacy of the American Revolution,” American Historical Review 104 (1999): 476–89.CrossRefGoogle Scholar See generally Pocock, J. G. A., “British History: APlea for a New Subject,” Journal of Modern History 47 (1975): 601–21CrossRefGoogle Scholar; Pocock, , “The Limits and Divisions of British History: In Search of an Unknown Subject,” American Historical Review 87 (1982): 311–36.CrossRefGoogle Scholar Ireland occupied an uncertain middle ground between Britain and the colonies, though the Act of Irish Union was designed to make it part of Great Britain.

192. Coke noted that, upon the fall of the Anglo-Saxon Heptarchy “all the other kings melted … the crowns to make one imperial diadem, for the king of the West Saxons over all.” State Trials, 2:650. See also Madden, “The Relevance of the English Medieval Experience of ‘Empire’ to Later Constitutional Issues”; Goebel, “Matrix of Empire”; Armitage, Ideological Origins of the British Empire, 22–23.

193. Hulsebosch, Constituting Empire, chaps. 7–8.

194. See Black, “The Case for the Colonies,” 1172 (commenting on Mcllwain's thesis that the colonists correctly interpreted the English constitution).

195. James Otis invoked Coke's report of Bonham's Case when opposing royal writs of assistance in the 1760s, and several lawyers cited the same case two decades later in the state antiloyalist cases that foreshadowed judicial review. Bailyn, Ideological Origins, 176–78 (analyzing Otis's use of Coke); Geobel, Julius Jr et al., eds., The Law Practice of Alexander Hamilton: Documents and Commentary, 5 vols. (New York: Columbia University Press, 19691981), 1:357, 358Google Scholar (documenting Hamilton's citation of Coke in Rutgers v. Waddington). And Thomas Jefferson remembered that during his apprenticeship Coke's First Institutes “was the universal law book of students, and a sounder Whig never wrote, nor a profounder learning and judgment in the orthodox doctrines of the British Constitution, or in what is called British liberties.” Lipscomb, Andrew A., ed., The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association of the United States, 19031914), 12:iv.Google Scholar

196. See, e.g., Kermit Hall, William Wiecek, and Finkelman, Paul, American Legal History: Cases and Materials (New York: Oxford University Press, 1991), 23Google Scholar; Presser, Stephen and Zainaldin, Jamil, Law and Jurisprudence in American History: Cases and Materials, 4th ed. (St. Paul, Minn.: West Publishing Company, 2000), 2829.Google Scholar Cf. Katz, “The Problem of a Colonial Legal History,” 476–77.

197. Good examples are Moglen, Settling the Law; Murrin, John M., “Anglicizing an American Colony: The Transformation of Massachusetts” (Ph.D. diss., Yale University, 1966).Google Scholar

198. The book went through many editions in London, Dublin, and, after the Revolution, the United States, between 1628 and 1836. See W. Harold Maxwell and Maxwell, Leslie F., eds., A Legal Bibliography of the British Commonwealth of Nations (London: Sweet and Maxwell, 1955), 1:449–52.Google Scholar See also Sheppard, Steve, History of Legal Education in the United States: Commentators and Primary Sources (Pasadena: Salem Press, 1999), 1:1011Google Scholar (observing that Coke's First Institute “held first position as the textbook of the common law” into the early nineteenth century).

199. For postcolonial struggle within and against imperial resources, see Bhabha, Horai K., “Of Mimicry and Man: The Ambivalence of Discourse,” in his The Location of Culture (New York: Routledge, 1994), 8592.Google Scholar See also Buell, Lawrence, “Postcolonial Anxiety in Classic U.S. Literature,” in Postcolonial Theory and the United States: Race, Ethnicity, and Literature, ed. Singh, Amritjit and Schmidt, Peter (Jackson: University Press of Mississippi, 2000), 196219.Google Scholar

200. There are many strands to postcolonial studies. I have in mind here examinations of white settler colony cultures, or what Alan Lawson calls the empire's “second world” relative to the first world of Great Britain and the third of the nonwhite colonies. Lawson, Alan, “Comparative Studies and Post-Colonial Settler Cultures,” Australian-Canadian Studies 10 (1992): 153–59Google Scholar; Lawson, , “A Cultural Paradigm for the Second World,” Australian-Canadian Studies 9 (1991), 68.Google Scholar See also Ashcroft, Bill, Griffiths, Gareth, and Tiffin, Helen, eds., The Post-Colonial Studies Reader (New York: Routledge, 1995).Google Scholar

201. Harold A. Innis's thesis that printed media travel well across space but lose integrity through time is suggestive here. Innis, , Empire and Communications, rev. Innis, Mary Q. (Toronto: University of Toronto Press, 1972).Google Scholar On transatlantic commercial exchange, see Hancock, David, Citizens of the World: London Merchants and the Integration of the British American Community, 1735–1785 (New York: Cambridge University Press, 1995).Google Scholar

202. See Hulsebosch, “Imperia in Imperio”; Morgan, American Slavery/American Freedom.

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