At least once during his tenure, the royal governor of colonial New York received a list of questions from London. The Board of Trade, which recommended colonial policy to the king's Privy Council, sought information about the province's geography, population, trade, and legal regime. This last question often came first: “What is the constitution of the Government?” The responses, from the first British governor in 1669 to the last before the Revolution, described the imperial arrangement as a hierarchy of power flowing directly from the Crown. In 1738, for example, the lieutenant governor wrote that “The constitution is such as his Majesty by his commission to his Governour directs, whereby the Governour with the Council and assembly are empowered to pass laws not repugnant to the laws of England.” A decade later, Governor George Clinton replied more insightfully, with the help of his closest advisor, Cadwallader Colden: “The constitution of this Government is founded on His Majesty's Commission & Instructions to his Governor. But the assembly have made such Encroachments on his Majesty's Prerogative by their having the power of the purse that they in effect assume the whole executive powers into their own hands.”
1. Mr. Clarke's Answers to Queries of the Board of Trade, 2 June 1738, Documents Relative to the Colonial History of the State of New-York: Procured in Holland, England, and France, ed. Brodhead, John R. and O'Callaghan, E. B. (Albany, 1853–1887), 6:120 (hereafter NYCD). A lieutenant governor served as acting governor in between gubernatorial appointments. The nonrepugnancy clause was enforced, in theory, by Privy Council review of colonial legislation. In practice, the status of colonial legislation was often unclear. Smith, Joseph H., Appeals to the Privy Council from the American Plantations (New York, 1950), 521–85.
2. Answer to the Several Queries from the Board of Trade by the Honorable George Clinton Esq Governour of New York, 23 May 1749, NYCD, 6:508-9. On Colden's relationship to Clinton, see Clinton to Under Secretary Andrew Stone, 24 July 1747, NYCD, 6:377; Smith, William Jr, History of the Province of New-York, ed. Kammen, Michael (Cambridge, Mass., 1972), 2:138.
3. Colden's Observations on the Balance of Power in Government, [1744-45], Collections of the New-York Historical Society (1935), 251, 253 (hereafter NYHS Collections). This is evidently a draft answer prepared for Clinton.
4. Board of Trade. Report on the Province of New York, 2 April 1751, NYCD, 6:616, 636.
5. Studies of seventeenth-century constitutional rhetoric include Judson, Margaret A., The Crisis of the Constitution: An Essay in Constitutional and Political Thought in England, 1603–1645 (New Brunswick, 1949); Nenner, Howard, By Colour of Law: Legal and Constitutional Politics in England, 1660–1689 (Chicago, 1977); Vile, M. J. C., Constitutionalism and the Separation of Powers (Oxford, 1967).
6. See, e.g., Spencer, Charles W., “The Rise of the Assembly, 1691–1760,” in History of the State of New York, ed. Flick, Alexander C. (New York, 1933–1937), 2:153–99. On the practical operation of the eighteenth-century English constitution, see Paley, William, Principles of Moral and Political Philosophy (1785; reprint, Boston, 1815), 341–42; Holdsworth, William, “The Conventions of the Eighteenth-Century Constitution,” Iowa Law Review 17 (1931–1932): 161–80; Namier, Lewis B., The Structure of Politics at the Accession of George III, 2d ed., 2 vols. (London, 1963); Plumb, J. H., The Growth of Political Stability in England, 1675–1725 (London, 1967); Bailyn, Bernard, The Origins of American Politics (New York, 1968), 59–105.
7. Reid elsewhere calls them “two conceptions of the British constitution” and “two constitutional traditions.” In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution (Chapel Hill, 1981), 32, 33, 34. See also Reid, , In a Defiant Stance: The Conditions of Law in Massachusetts Bay, the Irish Comparison, and the Coming of the American Revolution (University Park, Penn., 1977), 2, and The Constitutional History of the American Revolution: The Authority of Rights (Madison, 1986), 227–37; Black, Barbara A., “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124 (1976): 1157–1211; Greene, Jack P., Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens, Ga., 1986), 129–50; Leder, Lawrence H., Liberty and Authority: Early American Political Ideology, 1689–1763 (Chicago, 1968), 85–86. Some commentators suggest that research should now focus on the “actual practices” of constitutional governance in the colonies, rather than on “authoritative statements” claiming to define the constitution of the Empire. Hendrik Hartog, review of Periphiries and Center, by Greene, Jack P., William & Mary Quarterly, 3d ser. (hereafter WMQ) 45 (1998): 773–75; Bliss, R. M., “Review Essay. The British Empire and the American Constitution,” Journal of American Studies 21 (1987): 431–35.
8. Reid, John P., “In Accordance with Usage: The Authority of Custom, the Stamp Act Debate, and the Coming of the American Revolution,” Fordham Law Review 45 (1976): 339–40, and In Defiance of the Law, 33 (adding that it was “more a matter of personal usage than of judicial certainty” and “its impreciseness may be beyond our comprehension”). Reid here writes ambiguously of the “British constitution”; his sources refer to the English constitution. The context suggests that the characterization applies both to the English constitution and to the constitution of the Empire.
9. One prior meaning came from Roman law, in which constitutio denoted an imperial decree. In England, constitution occasionally signified an ordinance. The larger political connotation derived not from this legal usage but rather from the organic imagery of the body politic. Gerald Stourzh argues similarly. See his “Constitution: Changing Meanings of the Term,” in Conceptual Change and the Constitution, ed. Ball, Terence and Pocock, J. G. A. (Lawrence, Kansas, 1988), 38–43.
10. [Ramsay, Allan,] Essay on the Constitution, 2d ed. (London, 1766), 10.
11. Weston, Corinne C. demonstrates the importance of His Majesty's Answer to the XIX Propositions of… Parliament for English constitutional thought in her English Constitutional Theory and the House of Lords, 1556–1832 (New York, 1965), 99–123. See also Weston, and Greenberg, Janelle R., Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart England (Cambridge, England, 1981), 35–123. But she concentrates on the triadic estates model, which had precedent, not his use of the word constitution, which did not. See also Stourzh, “Constitution: Changing Meanings of the Term,” 42-43, noting sporadic uses before the Answer.
12. Bolingbroke, ADissertation on Parties, in The Works of Lord Bolingbroke (Philadelphia, 1841), 2:88.
13. Trenchard, John and Gordon, Thomas, Cato's Letters: Or, Essays on Liberty, Civil and Religious, and Other Important Subjects, ed. Hamowy, Ronald (Indianapolis, 1995), 2:497–98, 607, 610. See also Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), 68.
14. The foremost legal writer in eighteenth-century England, Sir William Blackstone did not use the term “constitutional law.” Commentaries on the Laws of England, 4 vols. (1765–1769; reprint, Chicago, 1979). See Dicey, Albert V., Introduction to the Study of Law of the Constitution, 7th ed. (London, 1908), 6–7; Cairns, John W., “Blackstone, An English Institutist: Legal Literature and the Rise of the Nation State,” Oxford Journal of Legal Studies 4 (1984): 347. On the eve of the Revolution, Lord Mansfield, chief justice of the King's Bench, did refer to a “maxim of constitutional law” in a case involving the rights of British emigrants in Grenada. Campbell v. Hall, 98 English Reports 1045, 1049 (K.B. 1774).
15. Restoration jurist Matthew Hale seemed to recognize this when he posited a lost constitution: “inasmuch as the original of that pact or constitution of our government appears not, we must in the inquiry into the same examine and measure it by those sound and authentical evidences of the laws and allowed customs and usages of this kingdom.” Hale, , The Prerogatives of the King, ed. Yale, D. E. C. (London, 1976), 10.
16. For the reflexive use of common law terms to discuss constitutional rights, see Nenner, By Colour of Law, 32-57, 197-98; Reid, The Constitutional History of the American Revolution, 107-9; Judson, Crisis of the Constitution. Some historians have recognized this virtual identity of constitutional discourse and the common law in the early modern period, but it has not received special emphasis. See Goebel, Julius Jr, “Constitutional History and Constitutional Law,” Columbia Law Review 38 (1938): 558–59, 562, 567; Plucknett, Theodore F. T., “The Lancastrian Constitution,” in Tudor Studies, ed. Seton-Watson, R. W. (London, 1924), 161–81; McIlwain, Charles H., “The English Common Law, Barrier against Absolutism,” American Historical Review 49 (1943): 23–31; Howe, Mark DeWolfe, “The Sources and Nature of Law in Colonial Massachusetts,” in Law and Authority in Colonial America: Selected Essays, ed. Billias, George A. (Barre, Mass., 1965), 15; Reid, In Defiance of the Law, 121; Cairns, “Blackstone, an English Institutist,” 347. A related theme is the common law's absorption of other strands of English law. See, e.g., Hale, Matthew, The History of the Common Law of England (1713; reprint, Chicago, 1971), 17-19, 42-43, 87–88.
17. Report of His Excellency William Tryon Esquire, 11 June 1774, Documentary History of New York, ed. O'Caliaghan, E. B. (Albany, 1849–1851), 1:754 (hereafter DHNY); Blackstone, Commentaries, 1:105. For the role of English law in colonial New York, see Eben Moglen, Settling the Law: Legal Development in Provincial New York (forthcoming).
18. Bentham, Jeremy, The Works of Jeremy Bentham, comp. Bowring, John (New York, 1962). 4:483–84.
19. Cf. Blackstone, Commentaries, 4:401-2; Hale, History of the Common Law, 40, 42 43. A central part of English culture, it was, as Victor Turner has described culture generally, “at any moment… more like the debris, or ‘fallout’ of past ideological systems, rather than itself a system.” Turner, Victor W., Dramas, Fields, and Metaphors: Symbolic Action in Human Society (Ithaca, 1974), 14.
20. Similar dynamics might be found in other provinces, but because of New York's strategic location and unusual diversity, debate over important issues was highly articulate. See Klein, Milton M., “New York in the American Colonies: A New Look,” New York History 53 (1972): 132–56; Bonomi, Patricia U., “The Middle Colonies: Embryo of the New Political Order,” in Perspectives on Early American History: Essays in Honor of Richard B. Morris, ed. Vaughan, Alden T. and Billias, George A. (New York, 1973), 63–92; Bodle, Wayne, “Themes and Directions in Middle Colonies Historiography, 1980–1994,” WMQ 50 (1994): 355–88. Those sensitive to the historical situation of colonial New York view it as “a critical piece in the puzzle of empire.” Murrin, John M., “Political Development,” in Colonial British America: Essays in the New History of the Early Modern Era, ed. Greene, Jack P. and Pole, J. R. (Baltimore, 1984), 428; Moglen, Settling the Law: Ritchie, Robert, The Duke's Province: A Study of New York Politics and Society, 1664–1691 (Chapel Hill, 1977), 5; Shannon, Timothy J., “The Crossroads of Empire: The Albany Congress of 1754 and the British Atlantic Community” (Ph.D. diss., Northwestern University, 1993). Others argue that the colony's political culture presaged the liberal, partisan politics of the nineteenth century. Bonomi, Patricia U., A Factious People: Politics and Society in Colonial New York (New York, 1971); Tully, Alan, Forming American Politics: Ideas, Interests, and Institutions in Colonial New York and Pennsylvania (Baltimore, 1994); Newcomb, Benjamin H., Political Partisanship in the American Middle Colonies, 1700–1776 (Baton Rouge, La., 1995).
21. A growing literature has refocused attention on the Empire as an important fact and symbol in the Atlantic world. See, e.g., Bailyn, Bernard and Morgan, Philip D., eds., Strangers within the Realm: Cultural Margins of the First British Empire (Chapel Hill, 1991); Greene, Peripheries and Center; Pocock, J. G. A., “British History: A Plea for a New Subject,” Journal of Modern History 47 (1975): 601–28; Pocock, , “The Limits and Divisions of British History: In Search of an Unknown Subject,” American Historical Review 87 (1982): 311–36; Meinig, D. W., Atlantic America, 1482–1800 (New Haven, 1986); Robbins, Keith, “Core and Periphery in Modern British History,” Proceedings of the British Academy 70 (1984): 275–97. On the intellectual history of empire, see Koebner, Richard, Empire (London, 1961); Yates, Frances, Astraea: The Imperial Theme in the Sixteenth Century (London, 1975).
22. This idea that there were competing interpretations of the constitution, amounting in effect to multiple constitutions, is rooted in the work of several scholars. See Horwitz, Morton J., “Foreword: The Constitution of Change: Legal Fundamentality without Fundamentalism,” Harvard Law Review 107 (1993): 32–117 (discussing multiple “constitutional visions”); Cover, Robert M., “Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983): 4–68 (discussing multiple constitutional discourses); Llewellyn, Karl, “The Constitution as an Institution,” Columbia Law Review 34 (1934): 1–40 (a rare Legal Realist critique of constitutionalism); Pocock, J. G. A., Politics, Language, and Time: Essays on Political Thought and History (New York, 1973). Cf. Greene, Peripheries and Center; Hendrik Hartog, “Pigs and Positivism,” Wisconsin Law Review (1985): 899-935; Onuf, Peter, Introduction to Maryland and the Empire, 1773: The Antilon-First Citizen Letters (Baltimore, 1974), 3-13, 34–39; David Sugarman, “The English Constitution,” Harvard Law School Seminar in Legal History Presentation, April 1996.
23. Here as elsewhere, “lawlessness” was an expression of opprobrium, not a term of legal precision. Cf. Hartog “Pigs and Positivism.” Marchland first signified the land “anciently claimed by the kings of both realms” between England and Scotland, and England and Wales. Hale, Prerogatives of the King, 20-21; Francis Bacon, “The Jurisdiction of the Marches” (1608), in The Works of Francis Bacon, ed. Spedding, James, Ellis, Robert L., and Heath, Douglas D. (London, 1861). 7:567–611. At least one contemporary imperial agent referred to the land west of the Appalachians as “Marches & Frontiers.” William Johnson to the Earl of Shelburne, 3 Dec. 1767, NYCD, 7:1001. As an interpretive tool, it has spread to many peripheries of the Empire. Bailyn, Bernard, Peopling of British North America: An Introduction (New York, 1986). Cf. White, Richard, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 (New York, 1991); Konig, David T., “Colonization 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, 1991), 70–92; Carter, Paul, The Road to Botany Bay: An Exploration of Landscape and History (New York, 1988).
24. [Kennedy, Archibald,] An Essay on the Government of the Colonies (New York, 1752), 16, 15. The standard morphology of the imperial constitution is Labaree, Leonard W., Royal Government in America: A Study of the British Colonial System before 1783 (New Haven, 1930). See also Katz, Stanley N., Newcastle's New York: Anglo-American Politics. 1732–1753 (Cambridge, Mass., 1968); Henretta, James, “Salutary Neglect”: Colonial Administration under the Duke of Newcastle (Princeton, 1972).
25. Parliamentary sovereignty (and the complementary notion of the Houses' supremacy within it) only became constitutional dogma late in the eighteenth century. Henrctta. “Salutary Neglect.” 337-47. And rarely did the agents openly draw on the Civil Law. although they occasionally recommended the procedures of chancery, admiralty, and Scottish law. See below. 361, 369-70, 371-72.
26. Sources on Colden include Keys, Alice M., Cadwallader Colden: A Representative Eighteenth Century Official (New York, 1906): Shammas, Carole, “Cadwallader Colden and the Role of the King's Prerogative.” New-York Historical Society Quarterly 53 (1969): 103–26, Steacy, Stephen C., “Cadwallader Colden: Statesman and Savant of Colonial New York” (Ph.D. diss., University of Kansas, 1987). On Johnson, see Hamilton, Milton W., Sir William Johnson: Colonial American, 1715–1763 (Port Washington, N.Y., 1976); Flexner, James T., Lord of the Mohawks: A Biography of Sir William Johnson (New York, 1979); Guzardo, John C., “Sir William Johnson's Official Family: Patron and Client in an Anglo-American Empire, 1742–1777” (Ph.D. diss., Syracuse University, 1975). For Kennedy, see Klein, Milton M., “Archibald Kennedy: Imperial Pamphleteer,” in Some Eighteenth-Century Commentators, vol. 2 of The Colonial Legacy, ed. Leder, Lawrence H. (New York, 1971), 75–105. They all served on the governor's Council. Jessica Kross observes that the Council comprised “a mixture of locals and those from Britain—placemen and local notables. New York, it seems, increasingly appealed to those in the secondary, or more provincial centers of the British Isles.” Kross, “‘Patronage Most Ardently Sought’: The New York Council, 1665–1775.” in Power and Status: Officeholding in Colonial America, ed. Daniels, Bruce C. (Middletown, Conn., 1986), 226.
27. Others include: Governor Robert Hunter (1709-19), the Scot responsible for bringing Golden to New York; Goldsborow Banyar, the deputy secretary of the colony who immigrated from provincial Hngland in 1737; Thomas Pownall, who began his career as an imperial administrator in New York; George Croghan, an Irish immigrant who was William Johnson's chief deputy; Andrew Klliol, a Scot who succeeded Kennedy as customs collector and receiver; and Welsh cartographer Lewis Evans. Most of the family members and deputies of Colden and Johnson conformed to the profile, sharing and inheriting offices as if property. Related coteries were the Anglican missionaries of the Society for the Propagation of the Gospel and the semipermanent military officers, such as General Thomas Gage, who arrived to fight the French. See Lustig, Mary Lou, Robert Hunter, 1666–1734, New York's Augustan Statesman (Syracuse, 1982); Banyar Papers, New-York Historical Society (hereafter NYHS); Schutz, John A., Thomas Pownall, British Defender of American Liberty; A Study of Anglo-American Relations in the Eighteenth Century (Glendale, Cal., 1951); Wainwright, Nicholas B., George Croghan, Wilderness Diplomat (Chapel Hill, 1959); Ernst, Robert, “Andrew Elliot, Forgotten Loyalist of Occupied New York,” New York History 57 (1976): 285–320; Gipson, Lawrence H., Lewis Evans (Philadelphia, 1939); Bridenbaugh, Carl, Mitre and Sceptre: Transatlantic Faiths, Ideas, Personalities, and Politics, 1689–1775 (New York, 1962); Carter, Clarence E., ed., The Correspondence of General Thomas Gage, 2 vols. (New Haven, 1931–1933). Whether or not “garrison government” fairly captures imperial administration in the late seventeenth century, it does not describe that of eighteenth-century New York. But I agree with Stephen Saunders Webb's general thesis that there were repeated attempts to impose imperial control on dynamic provincial societies. Webb, , The Governors-General: The English Army and the Definition of the Empire, 1569–1681 (Chapel Hill, 1979), and Lord Churchill's Coup: The Anglo-American Empire and the Glorious Revolution Reconsidered (New York, 1995).
28. On the parochialism of London, see Jacob M. Price, “Who Cared about the Colonies? The Impact of the Thirteen Colonies on British Society and Politics, circa 1714-1775,” Strangers within the Realm, 395-436; Namier, Structure of Politics, 1-61; Barnes, Thomas G., Somerset, 1625–1640: A County's Government During the “Personal Rule” (Cambridge, Mass., 1961), 23. Cf. Merton, Robert K., “Patterns of Influence: Local and Cosmopolitan Influentials,” in Social Theory and Social Structure, rev. ed. (Glencoe, Ill., 1957), 387–420; Shils, Edward, “Center and Periphery,” in The Constitution of Society (New York, 1982), 93–109.
29. Cf. Bailyn, Bernard and Clive, John, “England's Cultural Provinces: Scotland and America,” WMQ 11 (1954): 200–13; Colley, Linda, Britons: Forging the Nation, 1707–1837 (New Haven, 1992).
30. The new label “Great Britain” and the identification of its citizens as “Britons” helped elide old ethnic distinctions, still vibrant enough to lead to bloodshed more than once during the eighteenth century. Linda Colley has observed about many Scottish colonists that “A British imperium… enabled Scots to feel themselves peers of the English in a way still denied to them in an island kingdom.” Colley, Britons, 130. This holds too for the Irish, as well as for other self-conscious provincials. Cf. Syme, Ronald, Colonial Elites: Rome, Spain, and the Americas (London, 1958), 4.
31. [Kennedy, Archibald,] Serious Advice to the Inhabitants of the Northern-Colonies, on the Present Situation of Affairs (New York, 1755), 17.
32. Fox to Johnson, 13 March 1756, NYCD, 7:76. The commission arrived in 1761 (ibid., 458-59). Archibald Kennedy was instrumental in lobbying for the position. See, e.g., [Kennedy, ], Serious Considerations on the Present State of Affairs of the Northern Colonies (New York, 1754).
33. See, e.g., [Kennedy, ,] Observations on the Importance of the Northern Colonies under Proper Regulations (New York, 1750).
34. The History of the Five Indian Nations, Which Are Dependent on the Province of New-York in America, 2 vols. (London, 1747). The volumes were first published under separate titles in New York in the 1720s.
35. Colden, History of the Five Nations, 2:28. He even promoted the province's riverine skeleton as the link between the Atlantic and the Mississippi, “by which means an Inland Navigation may be made to the Bay of Mexico.” That water route was not continuous, but the presence of brief Indian carrying places made him imagine that the gaps were small. A bit of (unspecified) labor would make the whole continent accessible from New York City. Colden to Lt. Gov. George Clarke, 14 Feb. 1738, NYCD, 6:122.
36. He returned home to help suppress the Jacobite rebellion of 1715 and find a spouse. Keys, Colden, 107, 323. See generally Steele, Ian K., The English Atlantic, 1675–1740: An Exploration of Communication and Community (New York, 1986).
37. A few historians have recognized the importance of secondary figures in the formation of imperial policy. See Wickwire, Franklin B., British Subminislers and Colonial America, 1763–1783 (Princeton, 1966), 50–85; Clark, Dora Mae, The Rise of the British Treasury: Colonial Administration in the Eighteenth Century (New Haven, 1960); Plumb, Political Stability in England, 10-14; Syme, Colonial Elites, 3.
38. David S. Shields argues that historians of the Empire focus too much on published, and not enough on unpublished, sources. Shields, , Oracles of Empire: Poetry, Politics, and Commerce in America, 1690–1750 (Chicago, 1990). Letters should be added to this category. For an exploration of the role of written communication in imperial enterprise, see Innis, Harold A., Empire and Communications, rev. ed. (Toronto, 1972).
39. “Creole” here refers to those born in the province and who treated it as home, yet who can be considered (perhaps considered themselves) “not ancestrally indigenous to it.” See Brathwaite, Edward, The Development of Creole Society in Jamaica, 1770–1820 (Oxford, 1971), xiv–xv. On the themes in this paragraph, see McAnear, Beverly, “Polities in Provincial New York, 1689–1761” (Ph.D. diss., Stanford University, 1935), 990–91; Anderson, Benedict, Imagined Communities (London, 1983), especially 64, 88-89 (discussing the production of community identity and the “incompatibility of empire and nation”); Greene, Jack P., Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture (Chapel Hill, 1988), 171–206 (describing social differentiation and cultural convergence); Hoffer, Peter C., Law and People in Colonial America (Baltimore, 1992), 14 (discussing the gap between the theory and practice of colonial dominion); Pagden, Anthony and Canny, Nicholas, eds., Colonial Identities in the Atlantic World, 1500–1800 (Princeton, 1987); Warner, Michael, Letters of the Republic: Publication and the Public Sphere in Eighteenth-Century America (Cambridge, Mass., 1990). Recent treatments of early modern English history have emphasized the persistent importance of provincial identity. See, e.g., Morrill, J. S., The Revolt of the Provinces: Conservatives and Radicals in the English Civil War, 1630–1650 (London, 1976).
40. Plumb, J. H., “The Acceptance of Modernity,” in The Birth of Consumer Society, ed. McKendrick, Neil, Brewer, John, and Plumb, J. H. (London, 1982), 316–34; Greene, Pursuits of Happiness, 5, 197-98, 205.
41. Colden to William Douglass, , NYHS Collections (1917), 271-72. See also Keys, Colden, 1-26; Hoermann, Alfred, “Cadwallader Colden, A Savant in the Wilderness,” New-York Historical Society Quarterly 62 (1978): 271–88. Douglass shared Colden's concern about the colonies’ place in the Empire. Douglass, , A Summary, Historical and Political, of the First Planting, Progressive Improvements, and Present State of the British Settlements in North America (London, 1750).
42. Douglass organized “a Medical Society” composed wholly of Bostonians in 1735. Douglass to Colden, 17 Feb. 1735, NYHS Collections (1918), 146-47. Benjamin Franklin gave Colden some credit for the American Philosophical Society (founded 1743), but that was originally an association of Philadelphians based on personal and not epistolary contact. Franklin to Colden, 28 Nov. 1745, NYHS Collections (1919), 180-83.
43. Jacquetta Mae Haley studies twelve such associations in “Voluntary Organizations in Pre-revolutionary New York City, 1750-1776” (Ph.D. diss., S.U.N.Y. Binghamton, 1976). See also Bender, Thomas, New York Intellect: A History of Intellectual Life in New York City, from 1750 to the Beginnings of Our Own Time (New York, 1987), 9–40. Cf. Klein, Milton M., Introduction to The Independent Reflector (Cambridge, Mass., 1964), 33.
44. Independent Reflector, 444. The message of this uncompleted article appeared in various published issues of the Reflector.
45. Cf. Kammen, Michael, People of Paradox: An Inquiry Concerning the Origins of American Civilization (New York, 1972), 184-86, 222 (characterizing the colonists as simultaneously Anglophobic and Anglophile).
46. Haley suggests that the voluntary associations “familiarized the populace with alter-natives to official authority, and they produced men capable of taking the initiative once normal channels were blocked.” Haley, “Voluntary Organizations,” 40, 209. Patricia U. Bonomi analyzes the “factious” families in A Factious People. See also McAnear, Beverly, “Politics in Provincial New York, 1689–1761” (Ph.D. diss., Stanford University, 1935), 571, 966–91. New Yorkers were not always the first to establish such institutions, but the number and energy of their organizations in the last quarter century before independence was unmatched elsewhere in the colonies. On intercolonial competition and cooperation, see Kraus, Michael, Intercolonial Aspects of American Culture on lite Eve of the Revolution (1928; reprint, New York, 1972); East, Robert, “The Business Entrepreneur in a Clianjiinsi Colonial Economy, 1763–1795,” Journal of Economic History 6 (1946): 16–27; Harrington, Virginia, The New York Merchant on the Eve of the Revolution (New York, 1935). 164–243; Merritt, Richard L., Symbols of American Community, 1735–1775 (New Haven, 1966).
47. See, e.g.. Humphrey, David C., From King's College to Columbia, 1746–1800 (New York, 1976); Klein, Milton, “From Community to Status: The Development of the Legal Profession in Colonial New York,” New York History 60 (1979): 133–56; Keep, Austin B., History of the New York Society Library (New York, 1908); Bard, Samuel, A Discourse on the Duties of a Physician with some Sentiments, on the Usefulness and Necessity of a Public Hospital… (New York, 1769); MacBean, William M., biographical Register of Saint Andrew's Society of the State of New York, 2 vols. (New York, 1922); A History of St. George's Society of New York from 1770–1913 (New York, 1913); Stevens, John A., ed., The Colonial Records of the New York Chamber of Commerce, 1768–1784 (1867; reprint. New York, 1971); Haley, “Voluntary Organizations.”
48. For a sense of the tight genetic world of colonial New York, see O'Callaghan, Edmund B., comp., Names of Persons for Whom Marriage Licenses Were issued by the Secretary of the Province of New-York (Albany, 1860). See also Becker, Carl L., The History of Political Parlies in the Province of New York, 1760–1776 (Madison, 1909), 12–14. Some New Yorkers went to Britain for education, a cosmopolitan seasoning thai made them no less provincial, though marginally more likely to remain loyal after 1775. On the example of the DeLanceys, a few more of whom were educated abroad than Livingstons, see Launitz-Schurer, Leopold S., Loyal Whigs and Revolutionaries: The Making of the Revolution in New York, 1765–1776 (New York, 1980).
49. The reduction of colonial New York politics to the combat between these two families began in the late colonial period itself. “There are in this Province two ancient and re spectable families,” it was claimed in 1770, “viz. the DeL_n__y and the L_______n, who are the only competitors for power.” New York Journal, 15 April 1770. But the two families were on the same side of many issues. On the limitations ol the familial interpretation, see Varga, Nicholas, “New York Government anil Politics during the Mid-Eighteenth Century” (Ph.D. diss., Fordham University, 1960), 156 n.2; Klein, Milton M., “Politics and Personalities in Colonial New York,” New York History 47 (1966): 3–16: Fully, Forming American Politics, 254-56.
50. Cf. Steele, Ian K., “The Empire and Provincial Hlites: An Interpretation of Some Recent Writings on the Hnglish Atlantic, 1675–1740,” Journal of Imperial and Commonwealth History 82 (1980): 19; Colley, Linda, “Britishness and Otherness: An Argument,” Journal of British Studies 31 (1992): 315–16. The classic legal history of tradition and design is Haskins, George L., Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York, 1960). The quest for autonomy by prominent New Yorkers involved a search tor identity, but their cultural innovations were also attempts to project themselves as social elites. See Haley, “Voluntary Organizations.” 197. There is excellent lilerature on elite formation in nineteenth-century America and the role of corporations in that process. See. e.g.. Dalzell, Robert F. JrEnterprising Elites: The Boston Associates and the World They Made (Cambridge, Mass., 1987); Story, Ronald D., The Forging of An Aristocracy (Middletown, Conn., 1980): Hall, Peter D., The Organization of American Culture, 1700–1900 (New York, 1982). Less exists for the colonial period. Prominent are Bernard Bailyn, “Politics and Social Structure in Virginia.” in Colonial America, ed. Stanley N. Kalz and John M. Murrin. 3d ed. (New York. 1983), 207-30: Bridenbaugh, Carl, Cities in the Wilderness (New York, 1938); Bushman, Richard L., The Refinement of America (New York, 1992).
51. Williston, Samuel, “History of the Law of Business Corporations before 1800,” Harvard Law Review 2 (1888): 114; Pollock, Frederick and Maitland, Frederic W., The History of English Law before Edward I, 2d ed. (Cambridge, England, 1952), 1:486–511; Baldwin, Simeon E., Modern Political Institutions (Boston, 1908), 141–95; Davis, John P., Corporations: A Study of the Origin and Development of Great Business Corporations and Their Relation to the Authority of the State (New York, 1961), 223–27; Ullmann, Walter, “The Mediaeval Theory of Legal and Illegal Organizations,” Law Quarterly Review 60 (1944): 285–91. Some claimed that the corporation was not a common law device, but by the eighteenth century it was treated as such, reflecting the absorptive capacity ascribed to the common law by Matthew Hale. See Davies, John, The Question Concerning Impositions… (London, 1656), 34; Blackstone, Commentaries, 1:455-73; Hale, History of the Common Law, 17-18. What matters here is the eighteenth-century perception that the corporation was thoroughly English, not its precise genealogy.
52. This dynamic ambiguity between sovereign and grantee pervades the history of Anglo-American law. See, e.g., Blackstone, Commentaries, 2:50; Milsom, S. F. C., Historical Foundations of the Common Law, 2d ed. (London, 1981), 15–36; Goebel, Julius Jr, “Book Review: Parliament and the British Empire, by Robert L. Schuyler,” Columbia Law Review 30 (1930): 273–76. The alternation between descending and ascending theories of sovereignty is a theme in Walter Ullmann's work. See, e.g., Ullmann, , Principles of Government and Politics in the Middle Ages, rev. ed. (London, 1974), 19–26. Cf. Skinner, Quentin, The Foundations of Modern Political Thought (Cambridge, England, 1978), 2:114-15, 123–34 (discussing medieval theories of corporate sovereignty supportive of decentralized interpretations of the Holy Roman Empire).
53. Pollock and Maitland, History of English Law, 1:486-511.
54. See Hurst, J. Willard, The Legitimacy of the Business Corporation in the Law of the United States, 1780–1970 (Charlottesville, Va., 1970), 4; Williston, “History of the Law of Business Corporations,” 106-11; Cheyney, Edward P., “Some English Conditions Surrounding the Settlement in Virginia,” American Historical Review 12 (1909): 511–12; Andrews, Kenneth R., Trade, Plunder and Settlement: Maritime Enterprise and the Genesis of the British Empire, 1480–1630 (Cambridge, England, 1984), 16–17; Osgood, Herbert L., “The Corporation as a Form of Colonial Government,” Political Science Quarterly 11 (1896): 259-77, 502–33. For the tradition of local, corporate autonomy in America and England, see Hartog, Hendrik, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1860 (Chapel Hill, 1983); Goebel, Julius Jr, “The Courts and the Law,” in History of the State of New York, ed. Flick, Alexander C. (New York, 1933), 3:10–11; Goebel, Julius Jr, “King's Law and Local Custom in Seventeenth Century New England,” Columbia Law Review 31 (1931): 416–48; Allen, David G., In English Ways: The Movement of Societies and the Transferal of English Local Law and Custom to Massachusetts Bay in the Seventeenth Century (Chapel Hill, 1981), 47-54, 208–9; Reid, The Authority of Rights, 72-73, 138, 237; Greene, Peripheries and Center, 11-12, 141; Kishlansky, Mark A., “Community and Continuity: A Review of Selected Works on English Local History,” WMQ 37 (1980): 140, 146. On the balance between center and periphery in early modern nations, see Elliott, J. H., “A Europe of Composite Monarchies,” Past and Present, no. 137 (1992), 48–71; Greene, Jack P., “Negotiated Authorities: The Problem of Governance in the Extended Polities of the Early Modern Atlantic World,” in Negotiated Authorities: Essays in Colonial Political and Constitutional History (Charlottesville, Va., 1994), 1–24.
55. First Grant to the Duke of York, 1664, The Colonial Laws of New York (Albany, 1896), 1:1–5; Instructions for Gov. Thomas Dongan, 27 Jan. 1682-83, NYCD, 3:331.
56. Most were new. The triennial election, for example, was a seventeenth-century innovation that was, suddenly, “the usage Custome and practice of the Realme of England.” Parliament enacted triennial acts in 1641, 1664, and 1694. They were replaced by the Septennial Act of 1716. Kenyon, J. P., The Stuart Constitution, 1603–1688: Documents and Commentary, 2d ed. (Cambridge, England, 1986), 197-200, 335; Williams, E. Neville, The Eighteenth-Century Constitution, 1688-1815: Documents and Commentary (Cambridge, England, 1960), 49-50, 188–89.
57. James II and the Privy Council disallowed what they called “The Charter of Incorporation of the Province of New York.” They explicitly objected to the wholesale claim to English law. William III rejected the Charter as well. Veto of the Act entitled, The Charter of Liberties and Privileges, 3 March 1684, NYCD, 3:357; Observations on the Charter of the Province of New York, 3 March 1684, NYCD, 3:357-59; Moglen, Settling the Law. 47, 52; Spencer, Charles W., Phases of Royal Government in New York, 1691–1719 (Columbus, 1905), 58-59, 91; Colvin, David L., The Bicameral Principle in the New York Legislature (New York, 1913), 26–28; Labaree, Leonard W., Royal Instructions to British Colonial Governors, 1670–1776, no. 299, May 1697 (New York, 1935); Lovejoy, David S., “Equality and Empire: The New York Charter of Libertyes, 1683,” WMQ 21 (1964): 493–565. William Douglass reported that New York's “printed law-book begins April 1691 with a magna charm [i.e., the second version of the Charter of Libertyes], or fundamental constitution.” Douglass, Summary… of the British Settlements, 2:252. Douglass must have been referring to an old copy of the sessions laws, published periodically during each sitting of the assembly. The first revised edition of the statutes did note that the Privy Council repealed the 1691 “Charter” in 1697. Laws of New-York, from the Year 1691 to 1751, Inclusive, comp. Livingston, William and Smith, William Jr (New York, 1752), 5.
58. See, e.g.. [Bolingbroke,] The Country Journal, or the Craftsman, no. 172, 18 Oct. 1729; [Ramsay,] An Essay on the Constitution, 49; Blackstone, Commentaries, 4:114; [Alexander Hamilton,] The Farmer Refuted in The Papers of Alexander Hamilton, ed. Syrett, Harold C. et al. (New York, 1961–1987), 1:164; Bailyn, Ideological Origins, 206-7; Wood, Gordon, The Creation of the American Republic, 1776–1787 (New York, 1972), 344–54. Influenced by Thomas Hobbes, Blackstone declared that there “must be in all governments a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside.” Commentaries, 1:49. Cf. Hoffer, Law and People, 14; Franklin, Julian H., Bodin and the Rise of Absolutist Theory (Cambridge, England, 1973), 23–40.
59. [Kennedy, ,] An Essay on the Government of the Colonies (New York, 1752), 14.
60. Smith agreed with this characterization just after he claimed that the assembly took “the practice of the British House of Commons for their model,” precisely what Kennedy denied. To the improvers, there was no great difference. Smith, History, 1:257 n.*, 256. The triumvirate planned but did not complete an issue of the Independent Reflector criticizing Kennedy's devaluation of the provincial legislature, not his metaphor. Independent Reflector, 443. For a similar colloquy concerning the constitutional status of Ireland in the seventeenth century, see McIlwain, Charles H., The American Revolution: A Constitutional Interpretation (New York, 1924), 34–43.
61. On the “probative, evidentiary significance” of charters and the brief genesis of customary rights, see Reid, Authority of Rights, 164-68; Reid, “In Accordance with Usage,” 335-68.
62. See, e.g., Davis, Joseph S., Essays in the Earlier History of American Corporaions (Cambridge, Mass., 1917), 1:11, 76, 84, 86, 101, 102. This is not an exhaustive list of corporations in the colony. In addition, there were many quasi-corporate bodies, full of rituals and by-laws that approximated those of corporations. See, e.g., Haley, “Voluntary Organizations”: Bayles, W. Harrison, Old Taverns of New York (New York, 1915) (surveying coffeehouse, commercial, and cultural clubs). The Sons of Liberty and the local committees of correspondence followed suit with declarations that seem modeled on articles of incorporation. See, e.g.. Constitution of Albany Sons of Liberty, 1766, and Draft Constitution of New York Sons of Liberty. 7 July 1769, in The American Revolution in New York: Its Political, Social and Economic Significance, ed. Flick, Alexander C. (Albany, 1926), 307-8, 310–11.
63. Blackstone, Commentaries, 1:460; Davis, American Corporations, 1:5. There were a few exceptions to this rule.
64. See. e.g.. Reid, In Defiance of the Law, 32-49.
65. NYCD, 3:287-89; New-York Evening Post, 7 July 1747.
66. The Representation and Petition of the General-Assembly of New-York, Journal of the Votes and Proceedings of the General Assembly of the Colony of New York. Began the 9th day of April, 1691; and ended the [23d of December, 1765] (New York, 1766), 2:779 (18 Oct. 1764). For attribution, see Smith, William Jr, Historical Memoirs, ed. Sabine, William H. W. (New York, 1956), 1:24; Smith to Governor Monckton, 5 Nov. 1764, Chalmers Collection, New York Public Library (hereafter NYPL); Dillon, Dorothy, The New York Triumvirate (New York, 1949), 87 n.8.
67. To the Lords Spiritual and Temporal in Parliament assembled, Assembly Journal, 2:774 (18 Oct. 1764). Livingston's dismissal of New York's Natives as “savages” was typical of provincial attitudes. See, e.g., Eleazar Wheelock to Johnson, 28 March 1765, DHNY, 4:355 (describing the Natives as “lazy savages” and “bad tenants” of God).
68. The Humble Petition and Representation of the Representatives of Your Majesty's Loyal Colony of New-York, to the King, Assembly Journal, 2:769-72 (18 Oct. 1764). Similar representations followed. See, e.g., The Petition of the General Assembly of the Colony of New-York, Assembly Journal, 2:797 (11 Dec. 1765); Petition to the King, 31 Dec. 1768, Journal of the Votes and Proceedings of the General Assembly of the Colony of New York, from 1766 to 1776, Inclusive, 9 vols. in 1 (Albany, 1820), 1769:11-13 (7 April 1769). The provincials’ approach to English history and legal custom was like that of the seventeenth-century Whigs. See Colbourn, H. Trevor, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Chapel Hill, 1965); Pocock, J. G. A., The Ancient Constitution and the Feudal Law: English Historical Thought in the Seventeenth Century (Cambridge, England, 1957).
69. Upton, Leslie F. S., The Loyal Whig: William Smith of New York and Quebec (Toronto, 1969).
70. An exception was Smith's late colonial proposal for an American parliament, "Thoughts on the Dispute between Great Britain and Her Colonies” (unpub., ca. 1765-67), reprinted in Calhoon, Robert M., “William Smith Jr.'s Alternative to the American Revolution,” WMQ 22 (1965): 105–18. For a brief survey of attitudes toward the colonial constitutions and their relation to the English constitution, see Leder, Liberty and Authority, 79-117.
71. [Livingston,] “The American Whig,” pt. 5, New-York Gazette, and Weekly Post-Boy 11 March 1768.
72. Even the tenants on the Hudson River Valley estates saw the value of improvements to their land anil sold them to their landlords. Kim, Suns Bok, Landlord and Tenant in Colonial New York: Manorial Society, 1664–1775 (Chapel Hill, 1978). 179-80, 221-26, 243-44, 278, and especially 250-70. See also Colden to the Board of Trade, 1 March 1762, NYCD, 7:492; Abraham Lott to Rutgcr Bleecker, 21 April 1770, and 23 May 1770, Bleecker, Collins, and Aheel Papers, box 2, NYPL; Memorial of John Watts for Frederick Philipse, American Loyalist Transcripts, 41:627-28, NYPL.
73. Historians have noted the importance of the enclosure movement and its related “improvements” throughout the British Isles in generating a supply of emigrants to the colonies. Many urban emigrants also came originally from those enclosed fields. See, e.g.. Bailyn, Bernard, Voyagers to the West: A Passage in the Peopling of America on the Eve of the Revolution (New York, 1986). 44, 45, 291-92, 376, 606, and “Introduction: Europeans on the Move, 1500–1800,” in Europeans on the Move: Studies on European Migration, ed. Canny, Nicholas (Oxford, 1994), 2. There is a substantial literature on the enclosure movement in the British Isles. See. e.g., Thompson, E. P., “Custom, Law and Common Right,” in Customs in Common: Studies in Traditional Popular Culture (New York, 1993), 97–184. On mid-century immigrants “swarming to the north” in New York, see Bailyn, Voyagers to the West, 573-637; Handlin, Oscar, “The Eastern Frontier of New York,” New York History 18 (1937): 50–75; McGregor, Robert K., “Settlement Variations and Cultural Adaptation in the Immigration History of Colonial New York,” New York History 73 (1992): 193–212.
74. Anthropologists have reminded us that the activity of historical actors speaks volumes about their intellectual premises. See, e.g., Geertz, Clifford, The Interpretation of Cultures (New York, 1973).
75. See Rich, E. E., “The Population of Elizabethan England,” Economic History Review, 2d ser., 2 (1949): 247–64; Nicholas P. Canny, ed., Europeans on the Move. For conflicting British opinions about the individual right of “loco-motion” and governmental power to restrain migration, see Bailyn, Voyagers to the West, 52-57; Graham, Ian C. C., Colonists from Scotland: Emigration to North America, 1707–1783 (Ithaca, 1956), 90–104.
76. The pioneer was, of course, Frederick Jackson Turner. Turner, , The Frontier in American History (New York, 1920).
77. Bailyn, Bernard, The Peopling of British North America: An Introduction (New York, 1986), 16-17, 60–86; Bailyn, Voyagers to the West; Wyllys C. Terry, “Buying the Frontier; The Experience of Colonial New York,” unpublished paper, Conference on New York State History, Brockport, New York, June 1995; Wycoff, William, The Developer's Frontier: The Making of the Western New York Landscape (New Haven, 1988).
78. Cf. Alan Taylor, review of The Developer's Frontier, by Wycoff, William, WMQ 46 (1989): 621–23; Bailyn, Voyagers to the West, 597-637.
79. “In the Middle Ages,” wrote the English legal historian Frederic W. Maitland, “land law was the basis of all public law.” Maitland, , The Constitutional History of England (Cambridge, England, 1920), 38. Political theorists confirmed that this was still the case in the seventeenth century. See, e.g., Harrington, James, The Commonwealth of Oceana (London, 1656); Locke, John, Two Treatises of Government (London, 1690). William Blackstone assured his eighteenth-century students that the whole edifice of English law rested on land law. Blackstone, Commentaries, 2:44.
80. Only the manor of Rensselaerswyck survived the English takeover, and its privileges were to induce peopling of the land. Freedoms and Exemptions Granted by the West India Company to All Patroons, Masters, or Private Persons Who Will Plant Colonies in New Netherland, 7 June 1629, Laws and Ordinances of New Netherland, 1683–1674, ed. O'Callaghan, E. B. (Albany, 1868), 1–10.
81. See, e.g., Libby, Orin G., The Geographical Distribution of the Vote of the Thirteen States on the Federal Constitution, 1787–1788 (Madison, 1894), 21–26; Spaulding, E. Wilder, New York in the Critical Period, 1783–1789 (New York, 1932), 45, 77–80; Mark, Irving, Agrarian Conflicts in Colonial New York, 1711–1775 (New York, 1940); DePauw, Linda Grant, The Eleventh Pillar: New York State and the Federal Constitution (Ithaca, 1966), 5. A good survey of the early grants is Christenson, Jack H., “The Administration of Land Policy in Colonial New York” (Ph.D. diss., S.U.N.Y. Albany, 1976), 18–68. The manors may have slowed development of the Hudson Valley. See Earl of Bellomont to the Board of Trade, 1698 and 1700, NYCD, 4:397, 791; Colden to Gov. William Shirley, 25 July 1749, NYHS Collections (1920), 124; “Representations of Cadwallader Colden… Governor William Burnet, against the Bill for Facilitating the Partition of Lands in Joint Tenancy, November, 1721,” NYHS Collections (1934), 160-64; Colden to Governor Cosby, Report on the State of the Lands in New York (1732), DHNY, 1:377-89; Colden to the Board of Trade, 20 Sept. 1764, NYCD, 7:654-55. High official fees also hindered subdivision and settlement of land. Potin, Armand La, “The Minisink Grant: Partnerships, Patents, and Processing Fees in Eighteenth-Century New York,” New York History 56 (1975): 29–50. However, such fees provided much of the imperial agents’ compensation, as the assembly would not grant them salaries.
82. Kim, Sung Bok, Landlord and Tenant in Colonial New York, and “A New Look at the Great Landlords of Eighteenth-Century New York,” WMQ 27 (1970): 581–614: Smith, History, 1:215 (but see also ibid., 225). Colden, too, on occasion saw the landlord-tenant relationship as one of reciprocal interest. Colden to the Board of Trade, 1 March 1762, NYCD, 7:492.
83. The Scotsmen Livingston and Governor Hunter attempted to use Palatine immigrants to extract naval stores from Livingston Manor, but most of the Germans fled for the Mohawk and Delaware Valleys. See Labaree, Instructions to the Royal Governors, 2:888; Higgins, Ruth L., Expansion in New York (Columbus, Ohio, 1931), 47–55; Fingerhut, Eugene R., “Assimilation of Immigrants on the Frontier of New York, 1764–1776” (Ph.D. diss., Columbia University, 1962), 2–3. On the relatively strong growth of the manorial counties, see Countryman, Edward, A People in Revolution: The American Revolution and Political Society in New York, 1760–1790 (New York, 1989), 42.
84. “The Consideration of the natural Advantages of New-York…,” Independent Reflector, 437-38. See also “On the Importation of Mendicant Foreigners,” Independent Reflector, 83 85; “Of the Transportation of Felons,” Independent Reflector, 164-69.
85. For promotion of immigration, see Bailyn, Voyagers to the West, 573-637. New York's population trebled during the thirty years before the Revolution, a faster rate of growth than all of its contiguous neighbors except New Hampshire, which had a similar rate. Pennsylvania grew at a slightly slower rate. The populations of Massachusetts, Connecticut, and New Jersey doubled. Greene, Evarts B. and Harrington, Virginia D., American Population before the Federal Census of 1790 (New York, 1932), 15-17, 49-50, 72, 91, 107-8, 114–16. On the census, see Locke, John, Two Treatises on Government, ed. Laslett, Peter (1689–1690: reprint, Cambridge, England, 1963), 1:200, paragraph 33; Commager, Henry Steele, “America and the Enlightenment,” in The American Founding: Essays on the Formation of the Constitution, ed. Barlow, J. Jackson, Levy, Leonard W., and Masugi, Ken (Westport, Conn., 1988). 268–71.
86. This is in contrast to his exacting description of New York's boundaries with neighboring British colonies. Smith, History, 1:222, 197-201.
87. French seigneurs had claims around Lake Champlain, and London warned the New York government not to grant this land to others, as it had implicitly guaranteed French titles. Under pressure from war veterans who wanted land promised them as bonuses during the war, governors began to grant away the shores of the lake anyway, which led the Board of Trade to recommend compensatory grants elsewhere. See Additional Instruction to Gov. Moore, 5 July 1769, NYCD, 8:175; Lord Dartmouth to Gov. Tryon, 3 March 1772, DHNY, 1:578-79; Board of Trade to the Privy Council, 13 Feb. 1776, DHNY, 1:585-86; Hoffman, Ross J. S., Edmund Burke, New York Agent (Philadelphia, 1956), 112-16, 218-20, 229. French claimants renounced their titles during the Revolution in hopes of regaining Canada. Macdonald, A. de Lery, The Seigneurie of Alainville on Lake Champlain (Baltimore, 1929), 29.
88. For New Jersey, see Smith, History, 1:216. The New Hampshire grant controversy can be traced in DHNY, 4:539-1034. See also Bellesiles, Michael A., Revolutionary Outlaws: Ethan Allen and the Struggle for Independence on the Early American Frontier (Charlottesville, 1993); Jones, Matt B., Vermont in the Making, 1750–1777 (Cambridge, Mass., 1939); Schwarz, Philip J., The Jarring Interests: New York's Boundary Makers, 1664–1776 (Albany, 1979), 168–74.
89. Historians estimate the Iroquois population at 15,000 in the middle of the seventeenth century and about the same a century later, losses to disease and war offset in part by the absorption of the Tuscaroras (the Sixth Nation) in 1722. See Hurley, J. D., “Children or Brethren: Aboriginal Rights in Colonial Iroquoia” (Ph.D. diss., University of Cambridge, 1985), 16; Aquila, Richard, The Iroquois Restoration: Iroquois Diplomacy on the Colonial Frontier, 1701–1754 (Detroit, 1983), 30. On Iroquois’ place in imperial strategy, see Aquila, Iroquois Restoration; Dennis, Matthew, Cultivating a Landscape of Peace: Iroquois-European Encounters in Seventeenth-Century America (Ithaca, 1993); Richter, Daniel K., The Ordeal of the Longhouse: The Peoples of the Iroquois League in the Era of European Colonization (Chapel Hill, 1992); Nammack, Georgiana C., Fraud, Politics, and the Dispossession of the Indians: The Iroquois Frontier in the Colonial Period (Norman, Okla., 1969).
90. On the decline of native-colonizer relations in the eighteenth century, see Salisbury, Neal, “The Indians' Old World: Native Americans and the Coming of Europeans,” WMQ 53 (1996): 458; White, Middle Ground.
91. Edward Countryman nicely describes Johnson as “a cork blocking the only low-altitude access westward between the St. Lawrence and Georgia.” Countryman, , “Indians, the Social Order, and the Social Significance of the American Revolution,” WMQ 53 (1996): 348.
92. [Kennedy,] Observations on the Importance of the Northern Colonies, 10. In addition to strong natural increase of population was the high level of late-colonial immigration. Bailyn, Voyagers to the West.
93. Greenberg, , Crime and Law Enforcement in the Colony of New York, 1691–1776 (Ithaca, 1974), 71, 87–88. See generally Maier, Pauline, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765–1776 (New York, 1972), 16–26.
94. Greenberg, Law Enforcement, 158. Typical was the experience of Jacob Van Schaack, sheriff of Albany County. He reported to Lieutenant Governor Colden in 1760 that an arrest was frustrated when the suspect “seized a pistol, swore he would blow my Brains out, and so kept me off from further prosecuting the arrest, uttering all the time the most violent oaths and other abusive Language against me. It is impossible for me to execute my office… not only my life, but my fortune also is in the utmost danger by these insults.” Jacob Van Schaack to Colden, 31 Dec. 1760, NYHS Collections (1921), 383. The papers of John Tabor Kempe, the king's attorney general for the last twenty years of the colonial period, abound with examples of violence against authority. See, e.g., Catherine Van Alstyne to Kempe, 31 Jan. 1757, Kempe Papers, Letters, box 4, V-Yeamans, NYHS (a deputy sheriff in Canajoharie stabbed to death while attempting an arrest); Information against Robert Campbell et al., October 1763, Kempe Legal Papers, C-F (three men beat and almost killed Under-sheriff and Constable Barent Martling of Orange County to free a family member of one of the assailants awaiting trial for a felony charge); The King against Peter DeWitt, 1763, Kempe Legal Papers, C-F (critical wounding of Dutchess County Constable Adam Barrack); Draft Indictment, The King against Cornelius Lynsen, 1767, Kempe Legal Papers, G-L (assault on a New York City constable). Perhaps the most astounding example is the case of a New York City resident found guilty of murdering the county sheriff in 1756 and then pardoned by Governor Charles Hardy because the defendant was abiding by a local custom; he “had imbibed and strongly believed a common Error generally prevailing among the Lower Class of Mankind in this part of the world that after warning the Officer to desist and bidding him to stand off at his Peril, it was lawful to oppose him by any means to prevent the arrest.” As Greenberg concludes, this custom amounted to the pragmatic rule that “there was no reason for any citizen to submit to an arrest unless the personal authority of the peace officer made such a course the most prudent one.” In short, the officer had to present the suspect with overwhelming force. Greenberg, Law Enforcement, 160.
95. Greenberg, Law Enforcement, 172-74.
96. Greenberg, Law Enforcement, 178-79; Moglen, Settling the Law, 186.
97. Robert Livingston Jr. to Abraham Yates Jr., 3 March 1755, Abraham Yates Jr. Papers. NYPL.
98. Livingston to Yates, 15 Dec. 1756, and 15 May 1757, Abraham Yates Jr. Papers. NYPL. Livingston also could not compel Yates to select his candidate for jailer. Livingston to Yates. 21 Oct. 1754, and 31 Jan. 1755, Abraham Yates Jr. Papers, NYPL.
99. Livingston to Yates. 18 May 1757, Abraham Yates Jr. Papers, NYPL. The interlopers not only squatted on the land, they also helped themselves to its salable raw materials. See Henry Beekman to Loving Cousin, 29 Dec. 1750, and 20 March 1750-51, Beekman Papers, box 1. NYHS.
100. See Countryman, People in Revolution, 47-55; Mark, Irving, Agrarian Conflicts in Colonial New York, 1711–1775 (New York, 1940); Handlin, “The Eastern Frontier of New-York.” After 1750, crimes against public order received an increased share of enforcement resources, reflecting the concern of both the imperial agents and provincial legislators that the countryside was becoming more lawless. See, e.g., “An Act for preventing tumultuous and riotous Assemblies in the Places therein mentioned, and for the more speedy and effectual punishing of Rioters,” Colonial Laws, 5:647-55, 5:21, 5:613. Other laws increased the number of constables and justices of the peace. Few people wanted to serve as sheriff, con-stable, jailer, or hangman; those who did were often ineffective or corrupt. Greenberg, Law Enforcement, 164-71. For an interpretation of the change in law enforcement emphasizing governmental concern about trespassers, see Moglen, Settling the Law, 188-90.
101. Earl of Shelburne to Gov. Moore, 11 Dec. 1766, NYCD, 7:879.
102. There was nothing new in this blend of Biblical and common law in the British world. See Haskins, Law and Authority, 141-62; Nenner, By Colour of Law, 6-13.
103. Typical was Ethan Allen's reaction to news of Governor William Tryon's proclamation that land west of the Connecticut River belonged to New York: “have we not always overcome them[?]… if they shall ever come again we shall Drive them two hundred miles and send them to hell.… So your name is Tryon, tri on and be Damn he shall have his match if he comes here.” Information of Benjamin Buck, 24 Jan. 1772, DHNY, 4:764. For quick resort to arms when legal argument failed, see Sheriff Robert Yates to John Tabor Kempe and James Duane, 20 July 1771, copy, Bancroft Collection, 35:577-89, NYPL. Allen placed bounties on Kempe and Duane, who were both law officers and land owners. Peter Yates to James Duane, 7 April 1772, copy, Bancroft Collection, 35:619-21, NYPL.
104. Hough (not the squatters) called it a “mock Tribunal,” but there was more earnest revenge than ridicule in the proceeding. Petition of Benjamin Hough to Colden, 9 March 1775, DHNY, 4:891-93. For the prevalence of whipping and banishment in New York, see Goebel, Julius Jr and Naughton, T. Raymond, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664–1776) (1944; reprint, Montclair, N.J., 1970), 298-99, 690-91, 704–5. For legalistic arguments vindicating the New Hampshire grants, see Allen, Ethan, A Brief Narrative of the Proceedings of the Government of New-York… (Hartford, 1774); [Young, Thomas,] Some Reflections on the Disputes between New-York, New-Hampshire, and Col. John Henry Lydius of Albany (New Haven, 1764). Allen could have invoked the words of the provincial lawyers or Blackstone. See [William Livingston,] “Of Passive Obedience and Non-Resistance,” 16 Aug. 1753, Independent Reflector, 326; Blackstone, Commentaries, 4:433 (explaining 1688 and the doctrine of resistance). Alan Taylor argues similarly about settlers in the Maine territory, though they were much less violent than those in New York. Taylor, , “‘A Kind of Warr’: The Contest for Land on the Northeastern Frontier, 1750–1820,” WMQ 46 (1989): 3–26. For popular appropriation of custom, “some part of the constitutionalist rhetoric of his rulers,” and other legal claims of the “free-born Englishman” in eighteenth-century England, see E. P. Thompson, “Custom and Culture,” and “The Patricians and the Plebs,” in Customs in Common, 6, 74. Cf. Rude, George, The Crowd in History: A Study of Popular Disturbances in France and England, 1730–1848 (London, 1964); Brown, Richard M., “Violence and the American Revolution,” in Essays on the American Revolution, ed. Kurtz, Stephen J. and Hutson, James H. (Chapel Hill, 1973), 81–120; Moore, Barrington Jr, Injustice: The Social Bases of Obedience and Revolt (White Plains, N.Y., 1978), 18.
105. Colonial Laws, 5:647-55; The Proceedings of the Convention of the Representatives of the New-Hampshire Settlers (Hartford, 1775), 16. The act bypassed grand jury indictments. It expired without effect. Goebel and Naughton, Law Enforcement, 445-47. For the view that Allen and the Vermonters repudiated English law in favor of common sense justice, see Bellesiles, Revolutionary Outlaws, 170-79; in favor of communal peasant values, see Countryman, People in Revolution, 49-55. Importantly, some of these settlers were also land developers. The “Yankee” thesis was presented suggestively by Fox, Dixon Ryan in Yankees and Yorkers (New York, 1940). But the similar behavior and occasional cooperation among various ethnic groups suggests that their attitudes toward property transcended specific cultural matrices.
106. Blackstone was only the latest. Invoking Edward Coke's conquest doctrine, he maintained that “the common law of England, as such, has no authority” in the colonies. He accounted for resemblances by supposing that the colonists had “copied the spirit of their own law from the original.” Commentaries, 1:105-6. This was the theory. In practice, some conceded that the common law had, somehow during the process of colonization, gained force in the colonies. See, e.g., Campbell v. Hall, 98 English Reports 1045 (Lord Mansfield); Reid, Authority of Rights, 155-58.
107. Cf. Zuckerman, Michael, “Identity in British America: Unease in Eden,” in Colonial Identity in the Atlantic World, 1500–1800 (Princeton, 1987), 128; Seed, Patricia, “Taking Possession and Reading Texts: Establishing the Authority of Overseas Empires,” WMQ 49 (1992): 183–209. For celebration of Johnson in London, see An Account of the Conferences held, and Treaties Made, between Major-General Sir William Johnson, Bart, and the Chief Sachems and Warriours… (London, 1756). For provincial response, see [Livingston, William,] A Review of the Military Operations in North-America (London, 1757).
108. See, e.g., Sentiments, Remarks and Additions humbly offered to the Lords Commissioners of Trade and Plantations, on Their Plan for the Future Management of Indian Affairs, [1766,] NYCD, 7:661-66; Board of Trade to Johnson, 10 July 1764, NYCD, 7:634-41. Taking their cue from Francis Parkman, some historians have noted the revolutionary effect of the westward migration that followed the defeat of the French. See, e.g., Gipson, Lawrence H., “The American Revolution as an Aftermath of the Great War for Empire,” Political Science Quarterly 65 (1950–1951): 86–104; Peckham, Howard H., “Speculations on the Colonial Wars,” WMQ 17 (1960): 463–72. Cf. Bailyn, Voyagers to the West.
109. Royal Proclamation on North America of 7 October 1763, in Sources and Documents Illustrating the American Revolution, 1764–1788, ed. Morison, Samuel E., 2d ed. (New York, 1965), 3. For background to the Proclamation, see Order of the King in Council on a Report of the Lords of Trade, 23 Nov. 1761, NYCD, 7:472-76; Lords of Trade to the King, 2 Dec. 1761, NYCD, 7:477-79. Johnson helped lay the groundwork for the Proclamation in his correspondence to the Board of Trade throughout the Seven Years' War, and the Board actively sought his advice while drafting it and the corresponding “Plan for the Future Management of Indian Affairs” that followed in 1764. See, e.g., Johnson to Richard Peters, 30 March 1763, The Papers of Sir William Johnson, ed. Sullivan, James and Flick, Alexander C. (Albany, 1921–1965) (hereafter JP), 4:76; Board of Trade to Johnson, 5 Aug. 1763, NYCD, 7:535-36; Johnson to the Board of Trade, 13 Nov. 1763, NYCD, 7:578; Johnson to Gage, 23 Dec. 1763 (notice only), JP, 4:272; Board of Trade to Johnson, 10 July 1764, NYCD, 7:634-41; Johnson to the Board of Trade, 8 Oct. 1764, JP, 4:556-63; Johnson to Colden, 9 Oct. 1764, JP, 4:565-67. Several other imperial agents contributed to the Board's plan for Indian affairs. See, e.g., Colden to the Board of Trade, 12 Oct. 1764, NYCD, 7:667-70; Sosin, Jack M., Whitehall and the Wilderness: The Middle West in British Colonial Policy, 1760–1775 (Lincoln, 1961), 73–78.
110. Johnson to the Board of Trade, 20 Aug. 1766, NYCD, 7:853.
111. Johnson to Secretary Conway, 28 June 1766, ibid. 834-36.
112. Johnson to the Earl of Shelburne, 16 Dec. 1766, ibid. 880-82.
113. Ibid., 881 (italics added).
114. Johnson to Colden, 20 Feb. 1761, and 20 March 1762, JP, 3:338-41, 3:652-53; Colden to Johnson, 7 March 1761, and 27 Dec. 1761, NYHS Collections (1876), 70-71, 143-44; Johnson to Colden, 25 July 1763, NYHS Collections (1922), 228-31; Johnson to Amherst, [5 Feb. 1762,] JP, 3:618-20; A Meeting with Canajoharies, 10 March 1763, JP, 4:50-61. Klock's first scheme was selling rum to the natives and stealing their clothing for resale. Johnson wrote him twice to stop; “the answer was he gave the bearer, I might hang myself.” Johnson to Clinton, 7 May 1747, NYCD, 6:362. Partly because Klock was able to use the law himself—and hire William Livingston as his attorney—the Klock affair persisted through the Revolution. George Klock Jr. to Mr. Bleecker, Son of John Bleecker, Albany, 23 Nov. 1769, Bleecker, Collins, and Abeel Papers, box 2, NYPL; Johnson to Banyar, 29 April 1762, JP, 3:726; Journal of Indian Affairs, Nov. 1766, JP, 12:225; Kempe to Johnson, 31 Jan. 1769, JP, 6:616; Johnson to Kempe, 25 Feb. 1769, JP, 6:635; Johnson to John Blackburn, 20 Jan. 1774, JP, 8:1008-9; “Speech of the Decharihoga Chief of the Canajoharies to Sir William Johnson,” 11 July 1774, DHNY, 2:1004-6.
115. Johnson to Colden, 20 Feb. 1761, JP, 3:339; Colden to Johnson, 7 March 1761, Colden, NYHS Collections (1876), 70. See also JP, 4:280.
116. Johnson to Shelburne, 16 Dec. 1766, NYCD, 7:883. In desperation, General Thomas Gage applauded an assembly bill proposing capital punishment for those who illegally settled on Indian lands unless they moved within thirty days of warning. Gage to William Johnson, 31 Jan. 1768, JP, 6:86. It never became law.
117. [Young,] Disputes between New-York, New-Hampshire, and Lydius, 14. The titles at issue were from Massachusetts and New Hampshire governors. On Young, see Maier, Pauline, “Reason and Revolution: The Radicalism of Dr. Thomas Young,” American Quarterly 28 (1976): 229–49.
118. For some background, see the Board of Trade to Hardy, 19 March 1756, NYCD, 1:11; Journal of the Assembly, 2:497, 510, 525, 764-65.
119. Journal of the Assembly, 2:764 (4 Oct. 1764). “Tear Indian Title to pieces, and tear the country to pieces!” exclaimed a defender of New Hampshire titles. [Young,] Disputes between New-York, New-Hampshire, and Lydius, 19. On the importance of title and recordation in early New York, see Moglen, Settling the Law, 119-20; Nissenson, Samuel G., “The Development of a Land Registration System in New York,” New York History 20 (1939): 16–42.
120. Johnson to Colden, 27 Feb. 1765, JP, 4:653, 654.
121. Colden added that, though “The Proceedings there from the nature of things, are slow and require patience,… their effects are certain and effectual, which the greatest and richest Man cannot withstand.” Colden to Johnson, 15 Mar. 1765, JP, 4:681-82.
122. Johnson to Colden, 21 March 1765, JP, 4:694. A scire facias is a writ for repeal of letters patent. Black's Law Dictionary, 5th ed. (St. Paul, 1979), 1208.
123. John Tabor Kempe to Johnson, 12 Aug. 1765, JP, 4:817-19.
124. Commissions were letters patent issued under the great seal of England, the king's highest instrument of delegation, while instructions were issued under a lesser seal. See Labaree, Royal Government, 6-7; Keith, A. Berriedale, Constitutional History of the First British Empire (Oxford, 1930), 180–81. But instructions were usually interpreted as supplementary and coordinate, not conflicting and subordinate.
125. Kempe's premise was in accord with Blackstone's Commentaries. But Blackstone called the principle that “the king is the universal lord and original proprietor of all the lands in his kingdom” a “mere fiction.” Actual power rested on a historical alchemy of conquest and consent, not original ownership (2:50). Such imperial facts would determine land rights into the nineteenth century. For the tradition of prior purchase, see Freedoms and Exemptions Granted by the West India Company, 9; Smith, History, 1:260. For the argument that the Natives were “the Original Proprietors” who held “vested” rights in the land until legal purchase, see Handlin, Oscar and Mark, Irving, eds., “Chief Daniel Nimham v. Roger Morris, Beverly Robinson, and Philip Philipse—An Indian Land Case in Colonial New York, 1765–1767,” Ethnohistory 11 (1964): 226–27. The plaintiff was a Wappinger Indian, but the real beneficiaries were trespassing Connecticut settlers, and the argument was made by a Connecticut lawyer.
126. Johnson to Kempe, 6 Nov. 1765, JP, 4:862-64.
127. Johnson to Kempe, 1 Oct. 1762, JP, 10:541-42. The governor was also the chancellor in colonial New York, an identity that made his equity court (though not the law of equity itself) the source of provincial criticism. See, e.g., Smith, History, 1:269-72; [Smith,] “On the Delays in CHANCERY,” 7 June 1753, Independent Reflector, 2540-55; Katz, Stanley N., “The Politics of Law in Colonial America: Controversies over Chancery Courts and Equity Law in the Eighteenth Century,” Perspectives in American History 5 (1971): 257–84.
128. Johnson to Kempe, 6 Nov. 1765, JP, 4:862-64; Johnson, “A Review of the Progressive State of the Trade, Politics and Proceedings of the Indians in the Northern District…,” [Sept. 1767?], NYCD, 7:972. See also Johnson to the Board of Trade, 10 Oct. 1764, NYCD, 7:673; Moore to the Earl of Shelburne, 8 Nov. 1766, NYCD, 7:876-77. A compromise between the provincial patentees and the Natives was reached in 1768, when Johnson negotiated a treaty in which the Mohawks relinquished title to the eastern part of their claim in return for a cash settlement. John Morin Scott et al. to Johnson, 13 July 1768, JP, 6:273-74; Johnson to the Earl of Hillsborough, 17 Aug. 1768, NYCD, 8:94; Higgins, Ruth L., Expansion in New York (Columbus, 1931), 84–85.
129. Johnson to the Board of Trade, 30 Oct. 1764, NYCD, 7:672. Johnson respected Iroquois notions of property and envied the absence of property controversies among them. But he never converted to their principles of ownership, as is evident in his speculations. For a modern account of conflicting English and Indian notions of property, see Cronon, William, Changes in the Land: Indians, Colonists, and the Ecology of New England (New York, 1983), 54–81.
130. Johnson claimed that he worked to people his lands with settlers (“in a small Lodge in the Wild Woods amongst them”) rather than gain parcels for speculation “as is the custom of all the possessors of large Tracts within this province.” Johnson to John Pownall, 18 April 1763, JP, 4:90-91. All the while, Johnson struggled to obtain confirmation of an illegal (because too large) grant of “above 100,000 acres” from the Mohawks just west of Kayaderosseras. See, e.g., Johnson to John Pownall, 18 April 1763, JP, 4:90; George Croghan to Johnson, 14 April 1764, JP, 4:396-99; Colden to the Board of Trade, 31 May 1765, NYCD, 7:741-43. The Privy Council finally confirmed the grant in 1769. Order in Council, 22 May 1769, JP, 6:770-73. Many imperial agents in the colonies viewed such land grants as their primary compensation. See, e.g., Kempe to Johnson, 23 May 1766, JP, 12:92-93; Crary, Catherine Snell, “The American Dream: John Tabor Kempe's Rise from Poverty to Riches,” WMQ 14 (1957): 176–95.
131. Johnson to General Jeffrey Amherst, 30 July 1763, NYCD, 7:534, and 25 Aug. 1763, NYCD, 7:542-44; Johnson to the Board of Trade, 25 Sept. 1763, NYCD, 7:559-62; Johnson to Colden, 20 Dec. 1763, JP, 4:282.
132. On Molly and Joseph Brant, see Johnston, Jean, “Molly Brant: Mohawk Matron,” Ontario History 56 (1964): 105–24; Kelsey, Isabel T., Joseph Brant, 1743-1807: Man of Two Worlds (Syracuse, 1984).
133. In addition to Johnson's writings there is Colden's History and a number of pamphlets by Kennedy, such as The Importance of Gaining and Preserving the Friendship of the Indians to the British Interest, Considered (New York, 1751). For examples of Johnson's anthropology, see Johnson to the Board of Trade, 30 Oct. 1764, NYCD, 7:672; Johnson to Arthur Lee, 28 Feb. 1771 and 28 March 1772, DHNY, 4:430-37, JP, 12:950-55. The letters to Lee were published in the Transactions of the Royal Society of London. James Adair dedicated The History of the American Indians (London, 1775) to Johnson (among others) in return for the aid of “my great Hybernian Maecenas.” Adair to Johnson, 30 April 1769, DHNY, 4:412-16. See also Hamilton, Milton W., “Sir William Johnson: Interpreter of the Iroquois,” Ethno-history 10 (1963): 270–86. The agents’ diplomacy would not have created a fully interracial society, but their efforts suggest the possibility of a destiny for Native Americans other than that of removable obstacle. A few of the imperial agents expressed admiration of Jesuit relations with the Natives, especially compared to the work of English missionaries, and implicit in Johnson's critique is self-conscious identification with the Jesuits. See, e.g., Johnson to William Smith (of Philadelphia), 10 April 1767, JP, 5:530-31 (“worthy” quotation); Johnson to Samuel Johnson, 2 Dec. 1766, JP, 5:438-41; William Smith (of Philadelphia) to Johnson, 16 March 1767, JP, 5:510-14; Johnson, “A Review of the Progressive State of the Trade, Politics and Proceedings of the Indians in the Northern District…,” [Sept. 1767?], NYCD, 7:970. With admiration went competition. Johnson to Colden, 27 Jan. 1764, JP, 4:306.
134. Including the literal sense. Johnson's son-in-law edited a translation of the Book of Common Prayer for the Iroquois. NYCD, 8:815.
135. Alvord, Clarence W., The Mississippi Valley in British Politics (New York, 1959), 2:143. The Stanwix Treaty journal and deed are at NYCD, 8:111-37. Johnson quickly granted tens of thousands of acres east of the new line to his deputies. Halsey, Francis W., The Old New York Frontier (New York, 1901), 103–5. On the debate over new colonies, see Representations of the Board of Trade on the State of Indian Affairs, 7 March 1768. NYCD, 8:19-31; Alden, John, John Stuart and the Southern Colonial Frontier (Ann Arbor, 1944), 246–60; Johnson to the Earl of Dartmouth, 4 Nov. 1772, NYCD, 8:314-17. For Johnson's belief that the Indians would remain hunters for another century, see Johnson to William Smith (of Philadelphia), 10 April 1767, JP, 5:530-31. Three weeks before Johnson died. Parliament passed the Quebec Act, formally transferring much of the Ohio Valley to the more loyal colony of Quebec. 14 Geo. 3, c. 83. It too was mooted by rebellion.
136. Constitution of Vermont, 1777, preamble, chap. 1, art. 17.
137. On the importance of the jury, see Greenberg, Law Enforcement, 172, 175-76; Goebel and Naughton, Law Enforcement in Colonial New York, 603-10; Nelson, William, The Americanization of the Common Law (Cambridge, Mass., 1978); Stimson, Shannon C., The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall (Princeton, 1990).
138. [William Livingston,] “The Watch Tower,” New-York Gazette revived in the Weekly Post-Boy, 27 Jan. 1752.
139. New-York Gazette, 27 Jan. 1752. Livingston cited seventeenth-century antiquarian Henry Spelman, “the principal architect” of the periodization of English history into pre-feudal, feudal, and post-feudal stages. Pocock, Ancient Constitution, 119. The most famous example of jury lawlessness in colonial New York came in the Zenger trial. See Alexander, James, A Briefe Narrative of the Case and Trial of John Peter Zenger, ed. Katz, Stanley N. (Cambridge, Mass., 1963). See generally Green, Thomas A., Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago, 1985).
140. There is no evidence that Indians served on New York juries. There were no stated racial or religious qualifications, but a juror had to own a sixty-pound freehold or earn the same in rent every year. An Act for Returning of Able & Sufficient Juries, 27 Nov. 1741, made permanent, 6 Dec. 1746, Colonial Laws, 3:185-92, 3:599. For scattered evidence of Native American participation in colonial courts, see Kawashima, Yasuhide, Puritan Justice and the Indian: White Man's Law in Massachusetts, 1630-1763 (Middletown, Conn. 1986), 127–33; Ramirez, Deborah A., “The Mixed Jury and the Ancient Custom of Trial by Jury De Medietate Linguae: A History and a Proposal for Change,” Boston University Law Review 74 (1994): 789–96; Hoffer, Law and People, 31-32.
141. Johnson to the Earl of Dartmouth, 4 Nov. 1772, NYCD, 8:317, 316.
142. Colden to the Board of Trade, 12 Oct. 1764, NYCD, 7:668; Colden to Governor George Clinton, 8 Aug. 1751, NYCD, 6:741. See also Johnson to Kempe, 6 Nov. 1765, JP, 4:862-64; Johnson, “A Review of the Progressive State of the Trade, Politics and Proceedings of the Indians…,” [Sept. 1767?], NYCD, 7:972, 976. Distant venues and complex procedures were common complaints in the colonies. It is ironic that the Iroquois appeared “ambulatory” to Colden, who moved from Scotland to London, on to Philadelphia and then New York. Compared to other North American Indians they were sedentary agriculturalists, a source of their strength. Wessel, Thomas R., “Agriculture and Iroquois Hegemony in New York, 1610-1779,” Maryland Historian 1 (1970): 93–104.
143. Johnson to Shelburne, 3 Dec. 1767, NYCD, 7:1001; Johnson, “Sentiments, Remarks and Additions humbly offered to the Lords Commissioners of Trade and Plantations, on Their Plan for the Future Management of Indian Affairs,” [1764,] NYCD, 7:661-66; Warrent and Instructions to Alexander McKee, [24 March 1766,] JP, 12:49-52.
144. Johnson to John Brown, 31 Oct. 1766, JP, 5:404-5.
145. See Johnson to John Brown, 31 Oct. 1766, JP, 5:404-5; Benjamin Roberts to Johnson, 30 Sept. 1767, JP, 5:711, 713; Jehu Hay to George Croghan, 15 Oct. 1767, JP, 5:730-31; Board of Trade to the King, 7 March 1768, NYCD, 8:19-31; Johnson to Henry Moore, 24 November 1768, JP, 6:493-96.
146. See, e.g., Robert Calendar to William Edgar, 31 Dec. 1763, William Edgar Papers, vol. 1, NYPL. For the transatlantic contacts, see Katz, Newcastle's New York; Olson, Alison G., Making the Empire Work: London and American Interest Groups, 1690-1790 (Cambridge, Mass., 1992).
147. Even some traders lamented that “the Cival Law or Religion do not rule us.” One complained that he was “amongst a parcel of rascals, who mock at authority and government.” William Maxwell to William Edgar, 3 Sept. 1767; Frederick Hambach to Edgar, 23 March 1767, William Edgar Papers, vol. 1, NYPL.
148. Johnson to Kempe, 26 Dec. 1766, JP, 12:233. The Schermerhorns were a Dutch-extracted family based in Schenectady, founded by fur traders to evade the traditional Albany monopoly. See Guzzardo, “Sir William Johnson's Official Family,” 7-8; Monroe, Joel H., Schenectady: Ancient and Modern (Geneva, N.Y., 1914), 43–44. See also Norton, Thomas E., The Fur Trade in Colonial New York, 1686-1776 (Madison, 1974), especially 43–59; Mcllwain, Charles H., Introduction to Wraxall, Peter, An Abridgment of the Indian Affairs… in the Colony of New York, from the Year 1678 to the Year 1751 (Cambridge, Mass., 1915), xxxv–lxxv.
149. For the imperial agents’ inflation of the “Iroquois Empire” (which paralleled their inflation of the British), see Jones, Dorothy V., License for Empire: Colonization by Treaty in Early America (Chicago, 1983), 34, 61–62; Jennings, Francis, The Ambiguous Iroquois Empire (New York, 1984), 13–16, 162, 212, 373-74; Haan, Richard L., “Covenant and Consensus: Iroquois and English, 1676-1760,” in Beyond the Covenant Chain: The Iroquois and Their Neighbors in Indian North America, 1600-1800, ed. Richter, Daniel K. and Merrell, James H. (Syracuse, 1987), 56; Richter, Daniel K., The Ordeal of the Longhouse: The Peoples of the Iroquois League in the Era of European Colonization (Chapel Hill, 1992), 136–37, 190, 275-76; Hinderaker, Eric, “The ‘Four Indian Kings’ and the Imaginative Construction of the First British Empire,” WMQ 53 (1996): 487–526.
150. See Colden to Board of Trade, 7 Nov. 64, NYCD, 7:676-78; Smith, Appeals to the Privy Council, 383-416.
151. William Smith to Governor Monckton, 5 Nov. 1764, and 25 Jan. 1765, Chalmers Collection, NYPL.
152. Horsmanden to Monckton, 8 Dec. 1764, Chalmers Collection, NYPL; Horsmanden to Monckton, 10 Sept. 1767, Chalmers Collection, NYPL.
153. Watts to General Monckton, 10 Dec. 1764, NYHS Collections (1928), 313; Report of the Attorney and Solicitor Generals on Appeals in New-York, 2 Nov. 1765, NYCD, 7:815-16. Watts's correspondence is full of criticism of the colonial lawyers—though not of the common law. See, e.g., Watts to Sir William Baker, 22 Jan. 1762, NYHS Collections (1928), 13 (criticizing colonial lawyers and praising Blackstone). Little is known about Colden's attitude toward Scottish law, so it is difficult to measure the sincerity and opportunism in his remark to Watts. There was considerable debate in seventeenth- and eighteenth-century Britain about the relationship of Scottish and English law. The 1707 Act of Union provided for partial assimilation, leaving most of Scottish “private law” untouched. Levack, Brian P., The Formation of the British State: England, Scotland, and the Union, 1603-1707 (Oxford, 1987), 68–101.
154. Colden to Board of Trade, 22 Jan. 1765, NYCD, 7:698. Thomas Pownall drew the same analogy in a pamphlet published in London a few months earlier; but it appears from their quotations that the authors worked independently of each other. Colden's quotations are more accurate. Pownall, , The Administration of the Colonies (London, 1764), 55; Hale, History of the Common Law, 90.
155. This in addition to “Appeales… in Case of Error” involving upwards of twenty pounds. Judicature Act, 6 May 1691, Colonial Laws, 1:229-31; Moglen, Settling the Law, 168-70. For provincial criticism of local courts and nonstandard local law, see Smith, History, 1:260-61. For the role of local English law in early seventeenth-century America, see Goebel, “King's Law and Local Custom.”
156. Cf. Milsom, S. F. C., Historical Foundations of the Common Law, 2d ed. (London, 1981), 11–36; Hoffer, Law and People in Colonial America, 5-10; Tucker, Robert W. and Hendrickson, David C., The Fall of the First British Empire: Origins of the War for American Independence (Baltimore, 1982), 73–74.
157. The Conduct of Cadwallader Colden, Esquire (London, 1767), in NYHS Collections (1877), 429-67; Colden to Earl of Shelburne, 28 Nov. 1767, NYCD, 7:994-97; Colden to Lord Mansfield, 22 Jan. 1768, 29 Jan. 1768, NYHS Collections (1877), 146-50, 154-57. Livingston's dual role was the source of much controversy in the late 1760s and 1770s. See Livingston, Robert R., The Address of Mr. Livingston to the House of Assembly, In Support of His Right to a Seat (New York, 1769); Journal of the Votes and Proceedings of the General Assembly of the Colony of New York, 1769-70, 46 (21 Dec. 1769); 1770-71, 52 (25 Jan. 1771); Hoffman, Edmund Burke, New York Agent, 103-4, 194-98.
158. Archibald Kennedy qui tarn v. Thirty Two Barrels of Gunpowder, (1754); George Spencer qui tarn v. William Richardson et al. (1760), in Reports of Cases in the Vice Admiralty of the Province of New York and in the Court of Admiralty of the State of New York, 1715-1788, ed. Hough, Charles M. (New Haven, 1925), 82–83, 181-83; Smith, Appeals to the Privy Council, 515-17. The Creole vice-admiralty judges, Lewis Morris Jr. succeeded by his son Richard, acceded to the diminution of their jurisdiction. Prize, not smuggling, cases were the core of their business—and fees.
159. For evidence that the customs collectors chose not to enforce trade laws in some obvious cases of smuggling, see, e.g., The Petition of George Spencer to Governor Robert Monckton, 8/2/1763, Chalmers Collection, NYPL. For the new legislation, see Lovejoy, David. S., “Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764-1776,” WMQ 16 (1959): 459–84; Ubbelohde, Carl, The Vice-Admiralty Courts and the American Revolution (Chapel Hill, 1960).
160. Burke, , “Speech on Conciliation with the Colonies” (1775), in The Works of the Right Honorable Edmund Burke, rev. ed., 12 vols. (Boston, 1865), 2:124–25.
161. Colden to Halifax, 22 Feb. 1765, NYCD, 7:705-6; Colden to the Board of Trade, 22 Jan. 1765, NYCD, 7:699; Colden to the Board of Trade, 9 Nov. 1765, NYCD, 7:774; Colden to Secretary Conway, 14 Jan. 1766, NYCD, 7:805.
162. Johnson to Colden, 13 Sept. 1765, NYHS Collections (1923), 76.
163. Johnson to General Thomas Gage. 17 May 1766, JP, 5:216.
164. Some “principal Inhabitants” sought Gage's aid, but he suggested even this was designed to raise fear in London. Gage to Secretary Conway, 21 Dec. 1765, and 8 Nov. 1765, The Correspondence of General Thomas Gage, ed. Carter, Clarence E. (New Haven, 1931-1933), 1:79, 72-73. See also Gage to Johnson, May 1766, JP, 5:201. For a different view of the seamen, see Lemisch, Jesse, “Jack Tar in the Streets: Merchant Seamen in the Politics of Revolutionary America,” WMQ 25 (1968): 371–407. Milton M. Klein argues that lawyers were integral to generating and controlling the revolutionary furor; he notes, however, that about half remained loyal during the Revolution. Klein, , “New York Lawyers and the Coming of the American Revolution,” New York History 55 (1974): 383–407.
165. Johnson to Colden, 20 Feb. 1761, and 20 March 1762, JP, 3:338-41, 3:652-53; Colden to Johnson, 7 March 1761, and 27 Dec. 176 ], NYHS Collections (1876), 70-71, 143-44; Johnson to Colden, 25 July 1763, NYHS Collections (1922), 228-31; Rudolph Shoemaker to Johnson, 11 March 1772, JP, 8:442; Johnson to Colden, 19 March 1761, NYHS Collections (1922). 18. On the influx of Irish and Scots, see Bailyn, Voyagers to the West, especially 573-637. Thus, there were ethnic as well as racial conflicts on the frontier, though, apart from linguistic barriers (see, e.g., Smith, History, 1:226), they had more to do with constructed identity than atavistic characteristics. For example, when John Watts heard that George Klock evaded conviction, he played on old Anglo-Dutch tensions and referred to the Albanian jurors as “these vile Dutch,” though Klock was descended from Palatine Germans and Watts was part Dutch himself. Watts to General Monckton, 31 July 1763, and Dorothy C. Barck, Introduction to NYHS Collections (1928), 166, ix-x.
166. Frey, Samuel L., ed., The Minute Book of the Committee of Safety of Tryon County (New York, 1935). The remaining Johnsons fought for the Crown, then fled to Canada. It is in this context of frustration that one must interpret the claim that Johnson ruled Tryon county “completely.” Countryman, People in Revolution, 33; Guzzardo, John C., “Democracy Along the Mohawk: An Election Return, 1773,” New York History 57 (1976): 30–52.
167. See Klein, Milton M., “Prelude to Revolution in New York: Jury Trials and Judicial Tenure,” WMQ 17 (1960): 439–62.
168. Prat was bred a mechanic in Boston, joined the bar, and became a Massachusetts assemblyman, but his patron was Massachusetts Governor Thomas Pownall, an imperial agent who began his career in New York. Colden to John Pownall, 12 Jan. 1762, NYHS Collections (1876), 154.
169. Prat to the Board of Trade, 24 May 1762, NYCD, 7:501-2.
170. Colden to the Earl of Egremont, 14 Sept. 1763, NYCD, 7:549. See also Colden to the Board of Trade, 6 Dec. 1765, NYCD, 7:795-800. The reason for the strength of “faction” lay in the colony's sociology: “In a young Country, like this, where few Men have any acquired learning or knowledge, where the Judges and principal Lawyers are proprietors of extravagant grants of land, or strongly connected with them in Interest, or family alliances, it is possible, that a dangerous combination may subsist between the Bench and the Bar; not only greatly injurious to private property but likewise dangerous to His Majesty's prerogative & Authority.” Colden to the Board of Trade, 7 Nov. 1764, NYCD, 7:677. See also Colden to Gov. Cosby, 1732, NYDH, 1:377-89.
171. Colden to the Board of Trade, 5 April 1761, NYCD, 7:461; Colden to the Board of Trade, 2 June 1761, NYCD, 7:467; Board of Trade to the Privy Council, 16 Nov. 1761; Board of Trade to the King, 2 Dec. 1761, NYCD, 7:479; Order of the King in Council, 23 Nov. 1761, NYCD, 7:474-75. Prat's colleagues, Daniel Horsmanden and John Chambers, briefly refused to serve in protest against Colden's claim that their tenure was at the King's—meaning at that time, in effect, Lieutenant Governor Colden's—pleasure. Memorial of Daniel Horsmanden to Governor Monckton, 4 June 1763, Chalmers Collection, NYPL.
172. See Smith, History, 1:267; New York City Bar Agreement, 26 Nov. 1756, in Paul Hamlin, M., Legal Education in Colonial New York (New York, 1939), 162; Law Society Agreement, July 1764, William Smith Papers, box 2, lot 201, NYPL. See also Moglen, Settling the Law, 65-108.
173. Gouverneur Morris to Penn, 20 May 1774, cited in Sparks, Jared, The Life of Gouverneur Morris (Boston, 1832), 1:23–26. For use of “levellers,” see Smith, William Jr, Historical Memoirs, from 12 July 1776 to 25 July 1778, ed. Sabine, William H. W. (New York, 1958), 295–96.
174. Cf. Becker, History of Political Parties in the Province of New York, 22. The bipolar interpretation began at the outset of the Revolution. See, e.g., Paine, Thomas, Common Sense (Philadelphia, 1776).
175. New York Constitution of 1777, articles 35, 1. On the reinvention of the ancient concept of popular sovereignty in revolutionary America, see Morgan, Edmund S., Inventing the People: The Rise of Popular Sovereignty in England and America (New York, 1988); Bailyn, The Ideological Origins of the American Revolution, 198-229; Wood, The Creation of the American Republic, 1776-1787, 524-43. Cf. Skinner, Foundations of Modern Political Thought, 2:174-78; Ullmann, Principles of Government and Politics in the Middle Ages, 19-26, 215-305; Gierke, Otto von, The Development of Political Theory, trans. Freyd, Bernard (New York, 1939).
176. Federalist No. 1, The Federalist Papers, ed. Wills, Gary (New York, 1982), 2. Hamilton often referred to the new republic in imperial terms. See, e.g., Hamilton to Washington, 3 July 1787, Papers of Alexander Hamilton, 4:224 (referring to “the American empire”). Washington may be responsible for the nickname Empire State when he referred to it as “the seat of the empire,” meaning the confederation, not the state itself. Washington to the Mayor, Aldermen, & Commonalty of New York City, , Minutes of the Common Council of the City of New York, 1784-1831 (New York, 1917), 1:140.
177. Cf. DeWitt Clinton to the Committee of New York City on the Canal, 26 April 1824, in Memoir of DeWitt Clinton, ed. Hosack, David (New York, 1829), 479 (referring to the canal as “a bond of union between the Atlantic and the western states [that] may prevent the dismemberment of the American empire”). The canal followed a line first imagined by Cadwallader Colden.
178. Cf. Nobles, Gregory H., “Breaking the Backcountry: New Approaches to the Early American Frontier, 1750-1800,” WMQ 46 (1989): 666–67.
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