Constituting EMPIRE studies in legal history Published by the University of North Carolina Press in association with the American Society for Legal History Thomas A. Green, Hendrik Hartog, and Daniel Ernst, editors DANIEL J. HULSEBOSCH Constituting EMPIRE New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 the university of north carolina press chapel hill ∫ 2005 Library of Congress The University of Cataloging-in-Publication Data North Carolina Press Hulsebosch, Daniel J. All rights reserved Constituting empire : New York and the transformation of constitutionalism in the Designed by Eric M. Brooks Atlantic world, 1664–1830. Set in Janson and Trajan p. cm. — (Studies in legal history) by Keystone Typesetting, Inc. Includes bibliographical references Manufactured in the and index. United States of America isbn 0-8078-2955-2 (cloth: alk. paper) The paper in this book meets the 1. Constitutional history—New York guidelines for permanence and durability (State) 2. New York (State)—Politics and of the Committee on Production government—To 1775. 3. New York Guidelines for Book Longevity of the (State)—Politics and government— Council on Library Resources. 1775–1865. 4. Great Britain—Colonies— Administration—History. 5. Political Portions of this work have appeared culture—New York (State)—History. previously, in somewhat different form, 6. Constitutional history—United States. in ‘‘The Ancient Constitution and the I. Title. II. Series. Expanding Empire: Sir Edward Coke’s kfn5681.h85 2005 British Jurisprudence,’’ Law and History 342.74702%9—dc22 2004029987 Review 21 (2003): 439–82; ‘‘The Constitution in the Glass and the 090807060554321 Constitution in Action,’’ Law and History Review 16 (1998): 397–401; and ‘‘Imperia in Imperio: The Multiple Constitutions of Empire in New York, 1750–1777,’’ Law and History Review 16 (1998): 319–79, and are reproduced here with permission. In memory of my mother This page intentionally left blank CONTENTS Introduction: Constitutions and Empire { 1 part i The Imperial Origins of New York { 15 1 Empire and Liberty { 17 2 Time Immemorial: The Foundations of Common-Law Culture in an Imperial Province { 42 part ii Imperia in Imperio: Property and Sovereignty in a Frontier Province { 71 3 The Multiple Constitutions of Empire in New York, 1750–1777 { 75 4 The Search for Imperial Law in the 1760s { 105 part iii Imperial Civil War and Reconstitution { 145 5 Provincial Resistance and Garrison Government { 147 6 The State Constitution of 1777 { 170 part iv Postcolonial Constitutionalism and Transatlantic Legal Culture { 203 7 The Imperial Federalist: Ratification and the Creation of Constitutional Law { 207 8 Empire State: Constitutional Politics and the Convention of 1821 { 259 9 An Empire of Law { 274 Conclusion { 303 Notes { 307 Bibliography { 403 Acknowledgments { 467 Index { 469 This page intentionally left blank Constituting EMPIRE This page intentionally left blank 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 cen- tury. 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 York- ers published in books that circulated across the new United States and beyond. The institutional matrix for this creativity was empire, and the cata- lyst was an intraimperial struggle that culminated in a civil war known as the American Revolution. Afterward, New Yorkers played leading roles in re- configuring 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 re- ported 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.’’∞ 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.≤ Whatever its name, all viewed it as ‘‘the Center and Key of the Continent.’’≥ ‘‘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 natu- rally as a Stream gliding in its proper Channel.’’∂ 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 trad- ing 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 port 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 vil- lages close in space and identity to New England; scattered western settle- ments; 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 significant number of slaves throughout the countryside.∑ Slaves, like Native Americans, were not members of New York’s political culture, but they too affected its constitution before and after independence. This re- gional 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 2} Introduction west, into the continent and across the Atlantic. This oscillation between the local and the cosmopolitan defined what it meant to be provincial and gener- ated conflicting constitutional visions among colonial New Yorkers. New York was, therefore, both representative and unusual. Colonists else- where 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 au- tonomy 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.∏ 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 Wash- ington’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.π A seat of empire was geographically central, commercially vibrant, and inter- nationally formidable. Rome was the classical model, London its contempo- rary 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.’’∫ In 1785 it was unclear whether New York was truly the seat of an empire, for it was too early to tell whether the Confederation would succeed as one.