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Published: Fall 2005

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Copyright (c) 2005 by the University of North Carolina Press. All rights reserved.

Introduction
Constitutions and Empire

This book explores the formation of the United States' distinctive constitutional culture in early New York, from the British takeover of the province to its emergence as the Empire State in the early nineteenth century. During that time, New York was transformed from a modest Dutch trading outpost on the edge of the Atlantic world into a bustling entrepôt and exporter of goods, people, and culture. Its most important cultural export may well have been its constitutional culture. Decades of political and legal turmoil generated a new understanding of constitutionalism that New Yorkers published in books that circulated across the new United States and beyond. The institutional matrix for this creativity was empire, and the catalyst was an intraimperial struggle that culminated in a civil war known as the American Revolution. Afterward, New Yorkers played a leading role in reconfiguring Anglo-American constitutional resources into a new genre of law, constitutional law, as the province moved from the periphery of Britain's Atlantic empire to the center of a new continental one.

New York was a geographic, military, and commercial linchpin of the British Empire, the center of loyalism during the Revolution, and a fount of legal ideas in the early Republic. A seventeenth-century royal governor reported home that "this Province by its scituation (being much in the center of the other Colonies) … ought to be looked upon as the capital Province or the Cittadel to all the others; for secure this, and you secure all the English Colonies."[1] Its port lay where the Hudson River fed into the harbor and where the Atlantic pushed into the river, an estuary that the Mahican Indians called Mahicannittuck, or "great waters constantly in motion." European explorers referred to it as the "great River of the Mountains" because it cut through the Appalachians about 150 miles north of the harbor. The Dutch called it the North River, and the British renamed it "Hudson's" for the Englishman who explored the river under Dutch contract.[2] Whatever its name, all viewed it as "the Center and Key of the Continent."[3] "Every Thing conspires to make New-York the best Mart on the Continent," exclaimed a New York lawyer in 1753, better than Boston or Philadelphia. No other province had "a River so far navigable into the Country as ours; whence the Indian Trade from those vast Territories on the North, determines its Course to Albany, and thence down the Hudson's River to New-York, as naturally as a Stream gliding in its proper Channel."[4] Built by wind and water, then improved with landfill and wharves, New York seemed perfectly fitted for trade—nature's port.

By the middle of the eighteenth century, New Yorkers operated on the edge of a vast ocean marketplace, and their province helped connect the British Isles and the West Indies. Commerce linked the colonies and British port cities, and most New Yorkers had no reason to imagine a world without those ties. From this perspective, New York was much like Bristol, its trading partner on the west coast of England: both measured their distance from London by sailing time; only the unit of measurement, weeks versus days, differed. But diversity and specialization engendered conflict among the provinces, such as between the continental colonies and the West Indies. And New York was itself regionally diverse: the city and its hinterland; the Hudson Valley, with its large manors and commercial farming; Albany, a hub for Indian trade; eastern Long Island, a place of farms and fishing villages close in space and identity to New England; scattered western settlements; and forts and trading posts even farther west in land still governed, to all intents and purposes, by the Iroquois. Although they were not royal subjects and had no formal representation in the province, the Iroquois made New York different from other crown dominions. On the other hand, New York shared with its neighbors a reliance on slave labor. There was a large slave population in New York City—20 percent of its population in 1740—and a small but significant number of slaves throughout the countryside.[5] Slaves, like Native Americans, were not members of New York's political culture, but they too affected its constitution before and after independence. This regional and demographic diversity produced rivalries as well as connections, a sense that New York was a separate jurisdiction, and reminders that it was enmeshed in a larger empire. The Native Americans had long observed that the province's main river flowed up through the mountains and down to the sea. New Yorkers' perspective shifted likewise, north and south, east and west, into the continent and across the Atlantic. This oscillation between the local and the cosmopolitan defined what it meant to be provincial and generated conflicting constitutional visions among colonial New Yorkers.

New York was, therefore, both representative and unusual. Colonists elsewhere in British North America were at least as protective of their local liberties as the provincial elite in New York. Those in Massachusetts, for example, were unrivaled when articulating their colony's charter-based autonomy and their claim to English liberties, and they strove relentlessly to minimize the power of their royal governor. Likewise, there were competent imperial officeholders in several of the other colonies. Georgia, in particular, had a strong group of military and civilian officials in the mid-eighteenth century.[6] Yet no other colony had as coherent a group of imperial agents as that based in New York after 1750. More important, in no other colony were the provincial elite and the imperial agents so well balanced during the last quarter century of imperial rule. That tension between a corps of officials trying to reform imperial administration and a provincial elite jealous of its local power, in a marchland colony full of opportunities and threats, made New York's path to revolution indirect and not inevitable.

After the Revolution, New York remained a strategic port and became a headquarters for continental expansion. It was then that people began calling it the Empire State. That nickname probably derives from George Washington's reference to New York City as "the seat of the empire" in 1785 when he received the golden key to the city, then the Confederation's capital.[7] A seat of empire was geographically central, commercially vibrant, and internationally formidable. Rome was the classical model, London its contemporary successor. Washington invoked the prospect of an American empire to urge the city's residents to resist localism, which he thought threatened "to sap the Constitution of these States" and "destroy our national character."[8] In 1785 it was unclear whether New York would become the seat of an empire, for it was too early to tell whether the Confederation would succeed as one. This was the issue—"the fate of an empire, in many respects, the most interesting in the world"—that Alexander Hamilton framed for New York voters two years later in Federalist 1.[9] New York's unusually rich debate over the federal Constitution reflected its geopolitical importance and tradition of articulate political opposition. In turn, New York's ratification literature helped translate the tropes of imperial and provincial power into American constitutionalism.

The recovery of the imperial origins of American constitutionalism is not only a matter of historical interest. Although legal scholars often declare that American constitutions are living documents that adapt to changing times, even those who eschew reliance on the framers' original intent try to identify historically legitimate restrictions on constitutional meaning.[10] Some fundamental meanings were encoded long ago, and each generation must work within or against them. The first American constitutions, state and federal, were drafted after two centuries of colonization in which English legal culture structured relationships between province and metropolis, among the provinces, and within each province. Consequently, the constitutional ideas and practices of the first British Empire still influence American constitutionalism today.

Most Americans, however, equate the founding with the writing of the federal Constitution and view that event as an exceptional break with the past. They accept the framers' claim to have established Novus Ordo Seclorum at face value rather than ask why the framers wished to distance themselves from some, but not all, legacies of the British Empire—why they wished to see themselves as founders.[11] Returning the Constitution to the context of imperial resistance, rebellion, and state constitution making reminds us that the founders looked backward as well as forward.[12] In both directions they saw empire. Although crown officials and parliamentary legislation were gone, the legacies of British rule—its legal institutions, practices, and languages—remained as the raw materials for the American constitutions.

Now "empire" has negative connotations. Modern empires are seen as expansive and exploitive. According to the conventional historiography, the United States has, except for an aberrant moment in the late nineteenth century, been free of imperial ambition.[13] Since the Second World War, historians have shifted focus away from even the incontestably imperial aspects of its history. A century ago, historians examined "the colonial period of American history," the "colonial background of the American Revolution," and the structure of the British Empire in the Atlantic world.[14] The imperial school fell out of favor in part because its practitioners had successfully outlined colonial institutions. Others examined how those institutions—colonies, administrations, courts, interest groups—functioned and recovered their social histories.[15] In addition, much scholarly energy in the mid-twentieth century was spent trying to understand, criticize, and explain the meaning of American civilization to its citizens and a world caught in the Cold War.[16] Though some warned against returning to a complacent Whig history that celebrated the growth of freedom, the United States' imperial legacy was deemphasized.[17] Constitutional history in particular became a story of American liberty.[18]

New interpretive models within the academy and skepticism about nationalism outside it allow us to return to the eighteenth century and recover the imperial strand of American constitutional history. The renaissance of Atlantic history and imperial studies remind us that the American colonies were much like the other British provinces across the ocean: each was protective of its autonomy while participating fully in Atlantic trade and culture.[19] Historians have begun to recover the political, social, and economic connections that integrated the Atlantic and the individual empires within it.[20] Constitutional culture was a crucial means of integration. From its beginning, the British Empire could not have expanded so successfully without the integrating symbols of English constitutional liberty, and constitutionalism would not be so strong a force in the modern United States without that imperial legacy. But the empire was also marked by legal pluralism and polyvalent authority. Relationships that today appear vertical were then horizontal, as the empire was a collection of competing power centers rather than a pyramid of sovereignty. Who governed what? The answer turned on who asked whom, when, and why. The empire's legal architecture was baroque but unfinished: ornate in some areas, rude in others. Most Britons adhered to no single theory of the empire or its constitution; legal integration remained a controversial goal, not a reality.[21] As the empire spread, the resources of English constitutionalism became more malleable. What had served integration soon disguised diversity behind familiar terms. The failure to create a unifying constitution—a legal environment that could account for and contain disputes within the empire—contributed to its disintegration.

Some officials in eighteenth-century New York recognized that a special category of imperial law was necessary to bind the empire. In a legal world with no imperial or British law superior to the local law of its parts, these officials tried to manufacture one, carving out a space either within the common-law tradition or separate from it in which to administer imperial policy. The common law had served this purpose in medieval England, as royal judges centralized justice in toward the crown and away from local customary courts. But although England had become Great Britain, and Great Britain the British Empire, the dominant constitutional resources within those extended territories remained English, particularly the common law. This was now a hybrid resource of institutions and rhetorical strategies plastic enough to bolster central control or defend local autonomy, especially when the common law became closely identified with the "liberties of Englishmen" in the seventeenth century. Overseas, provincial New Yorkers successfully used those components of common-law constitutionalism upholding local autonomy, forcing the imperial agents to search for a separate imperial law. But the agents' attempts to create it helped precipitate rebellion, and today they are forgotten. A generation later, American lawyers created constitutional law to bind the states together. In so doing, they succeeded where the British imperial agents had failed and figure prominently among those whom Americans call "founding fathers." Other jurists built on this foundation of federal constitutional law to revise state common law and make it more integrative too. When the founders created a new republic, they did so in dialogue with their own colonial past, forging tighter bonds than the old imperial administrators had even imagined: "a more perfect Union."

Recovering the nexus between empires and constitutions should also help revitalize British-American constitutional history. "Constitutional history is certainly not dead," historian Stanley N. Katz remarked twenty years ago, "but it is not flourishing and its significance for colonial history is not altogether obvious."[22] Not long before, there had been much excitement in the field, centering around the work of Bernard Bailyn and Gordon S. Wood. "The word 'constitution' and the concept behind it," Bailyn observed, "was of central importance to the colonists' political thought; their entire understanding of the crisis in Anglo-American relations rested upon it." He and others argued that the concept "was forced apart, along the seam of a basic ambiguity, to form the two contrasting types of constitutionalism that have remained characteristic of England and America ever since."[23] In England, they argued, "constitution" signified only the extant arrangement of government, a framework of power that Parliament could change as it pleased. The English constitution had no fundamentality about it. The American innovation was to fix constraints on government. The colonists invoked anachronistic fundamental-law arguments to protest the new imperial regulations of the 1760s, and, Bailyn concluded, "[o]nce its utility was perceived and demonstrated, this process of disengaging principles from institutions and from the positive actions of government and then of conceiving them as fixed sets of rules and boundaries, went on swiftly." Writtenness, the extralegislative convention, and the doctrine of popular sovereignty all play important roles in this story that culminates in the federal Constitution of 1787 becoming fundamental law.[24] The descriptive and positivist English constitution, the argument concludes, became the prescriptive, restrictive, and aspirational American constitution.

This version of the American constitutional transformation has become the conventional wisdom. Some legal historians have amended it. John Phillip Reid, Barbara A. Black, and Jack P. Greene argue that there were two versions of the British constitution: London's interpretation, in which Parliament was omnipotent; and the colonial interpretation, premised on the belief that there were limits to Parliament's authority to legislate for the colonies.[25] These historians accept the Atlantic constitutional divide charted by Bailyn and Wood but argue that the American Whigs drew on a competing, live tradition within English constitutionalism. Indeed, the innovation, gradually developing in Britain, was that Parliament as a legislature reigned supreme above other sources of constitutional authority at home, and perhaps overseas too. In short, the equation of a constitution with fundamental law that restrained government, helped define a people, and, when violated, provided a set of remedies was not an American invention. The English remedy was the right of resistance, with its graduated steps of petition, riot, rebellion, and finally revolution. Postrevolutionary Americans did change constitutional meanings and remedies, but they did not move the constitution to the center of cultural identity. It was already there.[26]

The evolving definition of "constitution" is analyzed throughout this book. For now, it is helpful to think of constitutions not as documents but rather as relationships among jurisdictions and people mediated through highly charged legal terms. Before and after the Revolution, a constitution was a way of thinking about, and practices for carrying out, the project of government and never depended on a single institution of enforcement.[27] Instruments and rules were not enough. Well-understood practices, resting on a shared commitment to the society that a constitution serves, are needed to make constitutions work. The premise of Anglo-American constitutionalism has always been that constitutions are largely self-enforcing through a mixture of popular acceptance and deft administration. However, constitutional ideas and practices resting on this premise of convention varied across space at any given moment and changed over time in the eighteenth century. Britons in New York before the Revolution, and Americans after, struggled to define constitutions to accommodate and shape British legal culture as it traveled with colonists abroad. The focus here is on the way people experienced constitutions rather than on constitutional theory. It is futile to classify Anglo-American constitutionalism as, for example, either republican or liberal. Most people believed that a constitution should protect both the public interest and individual liberties.[28] Similarly, early modern constitutions were not simply descriptive blueprints for government or lists of prescriptive ideals. A constitution could be either or both, depending on who invoked it and for what purpose. Too much has also been made of the distinction between unwritten and written constitutions.[29] Much of the English constitution was written. Although no single document captured all English constitutionalism, there was an evolving canon of great documents. Magna Carta (1215), the Petition of Right (1628), and the Bill of Rights (1689), for example, were on everyone's list, while the Levellers' Agreement of the People (1648) was on few. These documents were not exhaustive. Commentary in treatises, essays, and judicial reports fleshed out their significance, as did oral tradition. Beyond the documents and the commentary were the institutions that interpreted and applied them, the practical conventions that gave constitutions life.[30] Collectively, these documents, ideas, and practices formed the empire's constitutional culture.

This culture was not sealed off from the rest of Anglo-American culture. Control over it was decentralized; no one held a monopoly on constitutional meaning. There were no constitutional law casebooks or professors of constitutional law; indeed, there was no genre of constitutional law. Early modern English-speakers also conveyed more than strictly legal meanings when they employed constitutional scripts. Modern Americans sometimes do the same, slipping political visions into well-crafted legal interpretations. Early moderns did so explicitly because the legal had not been divorced from the political. Constitutional discourse was a legalist idiom that highlighted arguments not just about courts and legislatures and executives but also the fate of political society. Consequently, constitutional culture provided a primary language for constructing the British Empire, revolting against it, and writing the new American constitutions.[31]

Conventional wisdom tells us that the American revolutionaries rejected the principle of legislative supremacy along with parliamentary regulation and carefully distributed authority between the states and federal government in an arrangement called federalism.[32] However, if we change the prerevolutionary image of the British Empire, the new Union looks different too. Instead of dual, limited governments emerging from an omnipotent sovereign, provincial Britons moved from a fluid constitutional environment to a much more structured and constraining one. If "federal" means diffuse authority, government became less federal after the Revolution because there were fewer legitimating ideas and institutions for Americans to draw on than for Britons a generation earlier. Indeed, the American constitutional doctrine of federalism entailed just this concentration of power. Centripetal, not centrifugal, forces characterized the constitutional settlement that followed the American Revolution. Soon legitimate constitutional authority operated at only two levels: the federal government and the states, with local authority subsumed beneath the latter.

The shift from common-law constitutionalism to American constitutional law also tended to submerge the political dimension of constitutions as the realm of politics became more clearly separated from law. In the first two generations of the Republic, state legislatures enjoyed something very close to supremacy. With the crown gone and executive governance suspect, state legislatures inherited the lion's share of legitimate authority after the Revolution. No longer were there horizontal competitors, reaching in like the crown or the British Parliament. The vertical alternatives—the federal and local governments—were not serious competitors. The party system, which flourished in early nineteenth-century New York, raised the state government's political power to its high water mark. But partisan politics, and the large internal improvement projects that party-led states undertook, led to a backlash as state voters demanded new constitutions to rein in state government. Those nineteenth-century state constitutions clarified the line between ordinary politics and constitutional law, but they also demonstrated that constitution making remained a form of politics too.[33] In short, state legislative power did not exhaust the people's constitutional power. The backlash also allowed Federalist jurists, who for three decades had been working to draw legal boundaries around legislative power, to enjoy newfound influence as commentators and treatise writers—greater influence, perhaps, than they had even in the Federalist heyday of the 1790s.

So there was a transformation in constitutionalism in the early United States, but it was not a shift from descriptive to prescriptive constitutions. Instead, Americanization involved the reorganization of the sources of a constitution, new institutions of enforcement, and a new conception of law as a hierarchy of substantive genres rather than, as in England, a collection of courts and procedures for resolving disputes, each jostling with the others for preeminence. This new conception of law did not develop directly out of English legal ideas and was not invented by the American founders in the 1780s but passed first through a stage that might be called Briticization or imperialization in which colonial subjects and administrators adapted British legal sources for their purposes. Where in England law was defined in terms of jurisdiction—who had the power to determine right and wrong and what were the boundaries of that power?—abroad it was increasingly conceived as jurisprudence, a rational system of rules that bound governments and private parties. The jurisdictional lines that defined the ancient constitution were difficult to police overseas. In contrast, short, powerful statements of fundamental law traveled well across space.[34] For the colonists to claim English liberties, they had to conceive of them as an abstract jurisprudence operative in all the crown's dominions, not as a system of licenses to sue in territorially bounded courts. Substantive notions of liberty, like negotiable instruments, became transatlantic currency that could be traded anywhere English was spoken. This jurisprudence of liberty could be used many ways. It could be imperial and integrative here, provincial and disintegrative there; liberating in one place and enslaving in another—or even liberating and enslaving in some places at the same time.[35] To understand the legal culture of the British Empire and the early United States, we must understand the intellectual transformation in the idea of law on which colonial resistance was premised: the shift from jurisdiction to jurisprudence, the rules in a legal system to the rule of law, English liberties to American liberty. The fundamental legal tension of empire was between the rule of law and the expansion of rule, a striving toward universals of government and rights on the one hand and toward increasing territorial jurisdiction on the other. The American founders' resolution was to attempt to control a space by law that could not possibly be controlled by men.

The expansive space could not be controlled by traditional means because the people moving across it would not submit to such control. This relentless mobility was the paramount expression of popular sovereignty in America, and it expressed more than traditional "customs in common."[36] Popular constitutionalism, which was performed in petitions, protests, parades, and mobbing, persisted after the Revolution and connected white Americans to their British past.[37] But overland emigration, which only with nationalist hindsight can be called internal migration, had always distinguished North American constitutional culture. That movement, which expressed radical notions of liberty and property, infuriated the British imperial agents while also making some of them rich from land speculation. Frustration fell away after the Revolution, and mobility became the country's most important capital investment; without it, the Union's greatest resource—land—remained worthless. And without ties of cultural identity, foremost among which was constitutional identity, much of that land might not have become part of the United States. People moved west, acting out what they believed were their liberties; their governors called them American; lawmakers incorporated them into the Union; because that incorporation offered the settlers the prospect of equal citizenship, they accepted it.[38] In retrospect it is manifest destiny. At the time it was a speculative project, a kind of political speculation. The hard fact of mobility—of popular disregard for jurisdiction in the traditional sense of legal boundaries of both liberty and power—was a fundamental fact of early American constitutionalism. It contributed to the Revolution, and it shaped all the American constitutions. The colonies and states that succeeded them existed in a market for people that turned on legal incentives called rights and liberties, and the imperial, then federal, government struggled to maintain the perception, true in most places at most times but fictional in all once in a while, that it exercised control over all whom one government called "subjects" and its successor called "the people." Here was the radical potential of "we the people." The relentless mobility of the people proved as momentous as their increasing participation in the electorate and their occasional performances of their power in parades and mobs. Men, women, often children, sometimes slaves, pushed where they were told not to go and encountered Native Americans unschooled in the legitimating language of Anglo-American liberty. They conquered the continent less with violence than with the confidence with which they carried forward their particular notions of constitutional liberty, notions forged in the matrix of empire.[39] That too is what was meant by a government of laws rather than of men.

A word about sources. One cannot trace the constitutional experience of even a single colony. The focus here is on the people who debated, enforced, and lived within constitutions while following their serendipitous ways of thinking and practices. New York was a large, diverse, and complicated place even three centuries ago; much of its constitutional history is left uncovered. On the other hand, much important to its constitutional history occurred outside its borders, so the study travels beyond the stipulated boundaries of time and space. In a world in which law was first and foremost procedural, legal culture was keyed to law-making and law-enforcing institutions; those are the backbone of its history. Courts and legislatures were the most important but not the only institutions that mattered. Also relevant were the many smaller regulatory bodies within the province, as well as the literature though which early modern Britons and Americans expressed old and new senses of legality. Although these institutions generated precedent and learned traditions, the historical focus should remain on the people who built and used those institutions. This book, therefore, concentrates on competing and successive groups of legal administrators and consumers and thus relies on prosopography.

Part I of this book lays out the imperial context of New York's founding. The seventeenth century was an age of territorial expansion and political innovation, and in the English world the polestars were the empire and constitution, which are explored in chapter 1. Empire and constitutional liberties were related and reinforcing, yet there was little consensus about the meaning of these key terms in the early modern British Atlantic world and even less about whether the liberties of Englishmen traveled overseas to other crown territories. Chapter 2 reconstructs the institutional framework of colonial New York and how its settlers gradually demanded, and got, many of those liberties.

Despite these institutional changes, New York's constitution remained contested. Part II explores the multiple interpretations of the constitution and the mid-eighteenth-century project of legal reform. Chapter 3 examines the three different versions of the constitution that crystallized in the middle of the eighteenth century: one held by the imperial agents who served the British Empire on the ground; another by the provincial elite jealous of maintaining their local control; and a third, less articulate version expressed in the cities and the marchland by socially marginal colonists who were suspicious of all but the most local forms of authority. Chapter 4 describes the reforms that the imperial agents proposed to control provincial law, politics, and settlement. These reforms failed and contributed to the Revolution.

Part III relates New York's constitutional history during the Revolution. During the Revolution, colonial government dissolved, and the British military imposed an extreme version of legal centralization: martial law. As chapter 5 explains, the British government debated continuously whether to restore civil government but never did, much to the disillusionment of loyalist New Yorkers. In contrast, the revolutionary provincial government wrote a new constitution that preserved what many colonists believed were the liberties that they had long enjoyed—or should have enjoyed. The state's new constitution is detailed in chapter 6. This constitution rested explicitly on the authority of the people, and most New Yorkers probably believed that legislation was the paramount expression of the people's will. But when state legislation conflicted with Confederation treaties and the law of nations, some New Yorkers sought ways to restrain or at least curtail the effect of that legislation. As the case of Rutgers v. Waddington reveals, one new and controversial way was through strong judicial interpretation of the state constitution.

Part IV sketches New York's constitutional significance in the new Union. No other state had as articulate a debate on the ratification of the federal Constitution as New York. Chapter 7 analyzes the main themes of that debate. The Federalist Papers were written in New York for New York voters and inspired some of the most powerful Antifederalist essays too. The literature that New York's Federalists and Antifederalists left behind had little effect on ratification but did influence the way the new document was interpreted. Together they created the new genre of constitutional law to bind the states. In the early nineteenth century, New York, like most states, rewrote its own constitution and made its political culture more democratic and less centralized. Suffrage barriers fell for white men, and more offices became elective rather than appointive. In short, as chapter 8 concludes, the state government's power was curbed. At the same time, chapter 9 argues, the state's unusually sophisticated legal culture produced works that influenced law throughout the United States. Paramount among these was James Kent's Commentaries on American Law (1826-30), a Federalist-inspired primer for students and practitioners. Works like The Federalist Papers, Kent's Commentaries, and other legal treatises were shipped west on the Erie Canal and helped forge a national legal culture.