Constituting Empire

New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830

Daniel J. Hulsebosch

• Publisher: The University of North Carolina Press
• Year: 2006
• Print ISBN: 9780807859209, 9780807829554
• eBook ISBN: 9780807876879
• Topic: Derecho
• Subtopic: Historia americana temprana

According to the traditional understanding of American constitutional law, the Revolution produced a new conception of the constitution as a set of restrictions on the power of the state rather than a mere description of governmental roles. Daniel J. Hulsebosch complicates this viewpoint by arguing that American ideas of constitutions were based on British ones and that, in New York, those ideas evolved over the long eighteenth century as New York moved from the periphery of the British Atlantic empire to the center of a new continental empire.

Hulsebosch explains how colonists and administrators reconfigured British legal sources to suit their needs in an expanding empire. In this story, familiar characters such as Alexander Hamilton and James Kent appear in a new light as among the nation’s most important framers, and forgotten loyalists such as Superintendent of Indian Affairs Sir William Johnson and lawyer William Smith Jr. are rightly returned to places of prominence.

In his paradigm-shifting analysis, Hulsebosch captures the essential paradox at the heart of American constitutional history: the Revolution, which brought political independence and substituted the people for the British crown as the source of legitimate authority, also led to the establishment of a newly powerful constitution and a new postcolonial genre of constitutional law that would have been the envy of the British imperial agents who had struggled to govern the colonies before the Revolution.

I: The Imperial Origins of New York

Nothing in law springs entirely from a sense of convenience. There are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new combination; and to find these ideas in the present case is exactly the problem.

Henry Maine, Ancient Law (1861)

The English Began Venturing across the Atlantic at the same time that they were consolidating their national identity around the English language, Protestant religion, commercial expansion, and a legal order soon known as the ancient constitution.¹ Overseas expansion and the English constitution developed simultaneously and reciprocally, each structuring the other. The English compared their legal order not only with that of other kingdoms in continental Europe but also with that of other dominions in their empire, and national borders served to insulate the realm from both. To the modern eye, it almost appears as though England had shed its prenational characteristics and passed them on to the colonies: as in the medieval realm, the empire’s government was primarily royal, its borders were fluid, and it was legally and culturally pluralist. These characteristics set the colonies apart from the English nation, which was increasingly perceived as a well-defined jurisdiction under a constitutional monarchy.

The English believed they were perfecting liberty at home, in part through colonization abroad, and although they always intended to keep those colonies within the pale of civilization, at first no one thought that the overseas dominions enjoyed the full range of English liberties. Those were, literally, the birthright of Englishmen. The legal culture of the colonies received little attention at home, and the design of governmental institutions abroad was haphazard.² Stronger executive government distinguished most colonies from England, as did tighter restraints on trade and migration. These restrictions were necessary to prevent settlers from trading directly with, and encroaching on the lands of, other European empires and the Native American tribes. The executive was especially strong in New York. Compared with neighboring colonies, by the middle of the eighteenth century it had a cohesive group of imperial agents, and frequent imperial wars made the British military a regular presence in its harbor and on its marchland.

Even though all the empire’s subjects were aware of its jurisdictional diversity, most also believed that they differed from people outside it, and part of what those subjects shared was access to England’s constitutional culture. Over the course of the seventeenth and eighteenth centuries, settlers abroad appropriated metropolitan law and constitutionalism to hold the crown administration to standards then being set in England, and they invented some new standards too. In this respect, New York was typical. New Yorkers shared institutions and ideologies with England but reconfigured them to serve local needs. The crown and its imperial agents believed that they could control the colony through their commissions and instructions, but settlers demanded a representative assembly and many “liberties of Englishmen” associated with the common law. Officially, legal authority descended from the crown. In practice, it was layered with ambiguity, compromise, and an assortment of local institutions derived from all over the British Atlantic world. Helping to hold it together was a common devotion to English legal ways.

1: Empire and Liberty

Our constitution is a prescriptive constitution; it is a constitution whose sole authority is that it has existed time out of mind. … [I]t is a constitution made by what is ten thousand times better than choice, it is made by the peculiar circumstances, occasions, tempers, dispositions, and moral, civil and social habitudes of people, which disclose themselves only in a long space of time.

Edmund Burke, “Speech on the Representation of the Commons in Parliament” (1782)

The History of Law is Like the archaeology of an ancient yet living city. Structures and artifacts of the past endure, but their historical meanings are disguised by the twin illusions of continuity and obviousness. The words “empire,” “constitution,” and “liberty,” for example, seem to mean now what they will forever, the same as they did in the beginning.

But there was a beginning. Each of these keywords owed its origin to many causes. Still, it is striking that just as Anglophone people began expanding beyond the bounds of medieval England, creating an entity they called an empire, they came to believe that they enjoyed a constitution, a term used both to describe government and to prescribe how it should function to safeguard the liberties of Englishmen.¹ These dual quests for nationhood and empire reinforced each other. As the English created a national identity and built an empire, they also reconfigured parts of their common law and political tradition in new terms of a constitution of liberty. In a transatlantic circle of meaning, the nation gave life to the empire, the empire preserved liberty, liberty helped define the English nation, and the English constitution was the repository of liberty. This link between the British Empire and the English constitution had dramatic consequences across the globe, especially in British North America, and its legacy persists, as the expansion of rule and the rule of law remain central to modern history.²

The Origins of Empire

The early modern English lived in a dynamic place. They were on the one hand schismatic, breaking after a millennium from the Roman Church, and on the other expansive, taking to the seas in search of markets, land, and glory. The term “empire” captured both internal consolidation and external expansion; it was a claim of immunity from foreign power, and it described an authority that held together fragmented territories under one king.³ The word derived from the Latin imperium, which meant simply authority without any territorial connotation, but also served as a shorthand for expansive kingdoms such as the Holy Roman Empire. The term had positive and negative connotations. To some, empire involved the conquest of enemies, but to others it was a divine instrument for spreading Christian civilization. The term also conveyed a claim of independence. The word became prominent in Henrician England, where it signified the realm’s autonomy from Rome.⁴ After the union of England and Scotland in 1603, the accent on its meaning shifted from the autonomous kingdom to the whole collection of crown territories. The idea of a British Empire preceded this union and derived from the myth of an ancient, united Isle of Britain under Brutus. The union of crowns, many thought, reunited what for too long had been divided.⁵ This broader conception of empire also included Ireland, which some viewed as a coordinate realm in a system of multiple kingdoms and others as a colony of a united Britain.⁶ Either way, by the eighteenth century the core of the British Empire was Great Britain, and the dominant partner there was England. From Great Britain it spread outward to the West Indies, North America, India, and beyond.

Most colonies began as private commercial ventures that received the crown’s blessing to establish dominion abroad in return for the promise that the venturers would possess the land within some time period and, if not, the grant would revert to the crown. The colonizers got dominion, a property interest, from the crown; in return they extended the crown’s sovereign jurisdiction, its imperium, abroad. They could not settle land without the royal grant, and the crown had little land to grant until they settled it. This was the elemental pattern of empire: crown power and the liberty of the subject were mutually dependent, and the public mixed imperceptibly with the private.⁷

Yet the whole was greater than the sum of its parts. Lawyer and crown officer Francis Bacon, in a Machiavellian essay entitled “Of Empire” that was part of the early seventeenth-century campaign for political union with Scotland, equated the term with kingdoms that were expansive and “aim at greatness,” a category that implicitly included England.⁸ According to Machiavelli, whose republican theory was at the core of early modern English political philosophy, expansion was the only way to achieve greatness because territorial gain brought trade, strength, and opportunity. But expansion also led to standing armies, corrupt rule, and the decline of liberty. In 1656, James Harrington reminded his republican readers that “Empire is of two kinds, domestic and national, or foreign and provincial.” Every nation was a “domestic or national” empire, and its political system could be a monarchy, mixed monarchy, or republican commonwealth. “Foreign and provincial” empire, in contrast, referred to overseas plantations. In Harrington’s utopia, which he imagined amid the disappointments of Cromwell’s republic, these “foreign” provinces were safety valves for ambitious citizens who sought more wealth than permitted at home under the agrarian law’s limitation on property holding. Because of these disparities in wealth in the provinces, ordinary subjects there would enjoy fewer liberties, while great landholders might seek independence from the republic. Accordingly, Harrington warned that provincial interests should not be permitted to wield “the balance of dominion in the province, because that would bring the government from provincial and dependent to national and independent,” and, in an increasingly frequent analogy, he reminded his readers that distant and unmanageable provinces contributed to Rome’s decline.⁹

Rewriting these tragic scripts of republicanism in progressive terms was a challenge facing imperial thinkers for the next two centuries.¹⁰ One strategy was to strengthen imperial government abroad. Strong administration would yield the benefits of colonization while preventing fragmentation. A different approach was to inoculate the dominions with liberty. If settlers enjoyed the full panoply of English liberties, corruption would never take root in the colonies and thus would not spread back home.¹¹ The English pursued both strategies in North America.

Ideologically, the empire was more than a series of business ventures. Indeed, the ideology of empire was quite similar to English national ideology. “Protestantism, oceanic commerce and mastery of the seas provided bastions to protect the freedoms of the British Empire,” observes David Armitage, and “[t]hat freedom found its institutional expression in Parliament, the law, property and rights, all of which were exported throughout the British Atlantic world.”¹² Although some elements of this ideology were contested, most agreed that the empire would help preserve English liberties, and those liberties would guarantee the success of the empire.

But whose liberties did the empire serve, and what were they? Were they English liberties, for the realm of England alone? British liberties for Scotland too and perhaps parts of Ireland? Or were these liberties common to all white English-speakers in the empire? Because English culture dominated within the empire, British liberty was defined in English terms, and the degree to which this English liberty was exported to the empire’s provinces was never clear. At the outset of transatlantic colonization, most believed that the overseas dominions had their own, separate legal systems. When the crown established its jurisdiction over a territory, it did not convey all of English law to that land. Royal imperium and English freedom overlapped but were not identical; most of the latter was restricted to England. But many Britons came to believe that the overseas colonists enjoyed core English liberties, especially representative government and common-law protections of property and person.

The Liberties of Englishmen beyond England: Calvin’s Case

The legal definition and spatial boundaries of liberty arose immediately on the union of crowns in 1603. When Elizabeth died without a lineal heir, the crown of England descended to her cousin, King James VI of Scotland. After centuries of war and suspicion, the two kingdoms were joined at the head, though not for another hundred years did they unite politically. One king ruled two kingdoms with separate national legislatures, court systems, and churches.¹³ It seemed to many that the fabled empire of Great Britain would be restored.

James established a commission to recommend reforms that would facilitate trade, and the commissioners proffered three proposals: the abrogation of “hostile lawes” in each nation targeting the other; the creation of uniform commercial law; and the treatment of natural subjects in one nation as subjects in the other, which would ensure that Scots and Englishmen could migrate into either kingdom without fear of discrimination based on nationality.¹⁴ The Scottish Parliament accepted all the proposals, but the English Parliament balked at the third: the Commons did not want to recognize Scots as English subjects. While most agreed that people born in one kingdom before James ascended the English throne (antenati) could not be treated as natural subjects in the other kingdom, opinion was divided about the status of those born after union (postnati). James issued a royal proclamation in support of all three proposals and added that English law already authorized treating Scottish postnati as English subjects.

Parliamentarians supported expansion but did not want to treat inhabitants of the other dominions as equal to themselves when those other subjects came to England. They also feared setting a prec...

Table of contents

• Cover Page
• Constituting Empire
• Copyright Page
• Dedication
• Contents
• Introduction: Constitutions and Empire
• Part I: The Imperial Origins of New York
• Part II: Imperia in Imperio: Property and Sovereignty in a Frontier Province
• Part III: Imperial Civil War and Reconstitution
• Part IV: Postcolonial Constitutionalism and Transatlantic Legal Culture
• Conclusion
• Notes
• Bibliography
• Acknowledgments
• Index