2011 April 6
Republicanism and ideals of constitutional authority in the revolutionary era HST 486
1. Administrative:
A. Project ideas/questions? Prospectus due next Wednesday
B. AP #1 due next meeting—questions?
2. Last Meeting: John Locke and Theories of Property and Government in the late 17th Century English Common Law
A. Hall Text: pp. 30-33: John Locke
1. English context of colonial authority: Who had rights and authority in English colonies?
2. How did "The Conquest" influence Engllish theories of constitutional authority after 1763?
3. "conquest theory" in relation to Lockian principles of authority and virtue
a. Magna Carta (1215)--fundamental, "natural" law and balance of authority and liberty
b. John Locke's Two Treatises on Civil Government (1690):
1. attempt to rationalize the Glorious Revolution (politicism!)
2. emphasis on individuality, private rights, government by consent, right of revolution
3. paradox of Lockean beliefs: (all people are corruptible, virtue flows from “the people”)
B. Hsueh Text: pp. 1-24: “Unsettling the Empire of Uniformity”
1.
2.
“hybrid constitutionalism” and implications for the nature of constitutional authority in colonial North America
a. rhetorical (“performative quality”) of colonial charters
b. differences between statutory and common law in the English tradition(pp. 9, 35-36)
c. Polyvocal traditions of English Constitution (pp. 10-11)
d. Importance of “locality” to power relations in the proprietary system
e. concept of “Onontio” and implications for power and authority in hybrid constitutionalism of North
America
How did the era of imperial wars (1680s-1760s) affect ideas about legitimate constitutional authority in North
America?
C. Hsueh Text, pp. 25-54: “Not Repugnant or Contrary”: Law, Discretion, and Colonial Founding in Maryland”
1. "Discretion" in the assignment of authority to the Proprietor in Maryland
2. Significance of "Oral Performance" of the charter
3. Trade relations and implications for access to power and authority in Colonial Maryland (Nanitokes
and "An Act Touching Indians")
4. How did the death of the elder Lord Baltimore affect the authority of the charter for Cecilius Calvert?
5. What powers and authority did the charter offer to colonists themselves?
a. What are the implications and legacies of the phrase, "Advice, Assent, and Approbation" of
"Free Men" in the Maryland charter (pp. 34-35)
b. What were the implications of those elements of the charter that recognized the limits of
crown authority (see pp. 37-38)
3. Today: Constitutional Authority in the English Colonial Tradition and implications of the Conquest
D. Hsueh, pp. 55-82: “Giving Orders: Theory and Practice in…Carolina (Malory, Amanda, Jonathon)
1. What was Locke's relation to the Carolina Charter? (Secretary to Lords of Proprietors of Carolina and
to the Council of Trade and Plantations)
2. Fundamental Constitutions of Carolina as related to the work of John Locke:
a. context of 1669 voyage of founding
b. proprietary charter of 1665
c. similarities to MD charter (palatinate of Durham reference)
d. considered "overly elaborate" by many scholars
e. Locke as secretary or author of the Fundamental Constitutions? (pp. 60-62)
f. Agrarian settlement features of the document: "three-fifths" clause (p. 62)
g. What was the relation of the Carolina colony to the Virginia venture?
3. What does Hsueh mean by referring to the Carolina document as a "hybridized creation" (p. 64)?-republican, feudal, and authoritative features?
a. In what ways was it an "imagined" framework?
b. what features required adaptation and why?
c. in what ways did the document promote "proportion and balance of power"?
d. What does Hsueh mean by the phrase "unacknowledged republics" when referring to the
Fundamental Constitutions of Carolina? (pp. 68-69)
4. What was the status of Indians in the Fundamental Constitutions?
a. What was the "Barbados Proclamation"? (p. 71)
b. How did Indian relations affect costs of colonial development for Proprietors?
c. To what degree did indigenous forms of governance influence Carolina forms of authority?
i. Survey, planting, trading practices
ii. locality based vs identity-based forms?
5.
iii. "Indians were indigenous, free, and in possession of existing rights to the land."
iv. Proprietors reserved sole rights to trade with Indians, but In practice found benefits in
broader relations (less controlled)
What was the status of slavery In the Carolina system? (pp. 78-80): Note distinction between "negro
slaves" and "Indians"
E. Hsueh, pp. 83-113: “Treaty Power and Hybrid Constitutionalism in Pennsylvania (Jeffrey, Patrick, David)
F. CITM &CDIC: Lower Canada, Conquest, and the Fledgling Regime: 1759-1774 & 1774-1791 plus:
1. Royal Proclamation, Treaty of Paris, Instructions to Governor Murray (Duke & Virginia)
2. Petition of Quebec Traders, Lt. Gov. Carleton's Reports of 1767-8 (Greg & Thomas)
3. Petition of French Subjects, Quebec Act, Instructions to Carleton, 1775 (Matt & Taylor)
G. Kruman, pp. 1-14: English Constitutionalism, Imperial Crisis, & State Formation (Jake, Stephen, Sarah)
H. Kruman, pp. 14-34: Constitution-making in the Revolutionary States (Jaxon, Jeffrey, Vanessa)
I.
Kruman, pp. 35-60: Declarations of Rights and Constitutions (Amy, Kate, Jerrod)
A. Compare the Proclamation of 1763 with the articles of capitulation (1759 &1760)?
1. Who was the issuing authority in each case? Under what authority? Theory of Legitimacy?
2. Why was the proclamation issued and what were its primary features?
a. Territorial boundaries: Quebec, E. Florida, W. Florida, Grenada
b. Indian Reserve: w. of headwaters of rivers emptying into Atlantic, s. of Quebec, n. of the
Floridas
1. exclusion of new settlers
2. expulsion of non-Indian settlers
3. restrictions on land sales
4. licensed trade only
c. Governors to call General Assemblies and make laws "with advice and consent of…"
d. Protection of Indians (exclusion order and removal order applied to NON-Indians),
regulated land dealings, licensed trade only)
e. Self-governance of colonies?
f. Royal enforcement powers?
3. How did the proclamation affect guarantees in Articles of Capitulation?
a. religious freedoms?
b. provisions for the rights of people of New France?
c. status of Indians?
B. How did the proclamation compare with the Treaty of Paris in 1763?
1. How did the Treaty of Paris affect guarantees of religious freedom? (articles 4, 20)
2. Why did Governor Carleton distinguish between Amherst's 1760 promises, the proclamation, and the
treaty of 1763, & Governor Murray's administration (after 1764) regarding rights of Canadiens?
a. Note reference to "natural rights" (Carleton's Nov 1767 report)
b. Note reference to seigneurs & habitants & practices vs theory of "nobility" & feudalism
c. Why does Carleton request approval for a citadel in Quebec in 1767?
3. Compare Carleton's assessment of (a) the Capitulations, (b) the Proclamation & treaty, and © the
legacy of Murray's administration (1764-67) as it affects the situation in 1768-9?
a. Why does Carleton argue the King's appointment of Murray "terminated" Amherst's agreements?
b. How did governing practice compare with governing theory after 1764?
4. Why is the King soliciting a report from Carleton in 1767-8? (consent of the governed?)
5. How does Carleton compare the King's edicts with Acts of Parliament? Why? (legitimacy?)
6. How does Carleton characterize the Canadien right to free practice of religion? self-governance?
7. How does the timing of the Conquest affect Canadiens' rights to property? precedent issues?
C. Why did Carleton propose the drafting of a new legal code for Canada in 1768?
1. What is the purpose of such a code? How does it relate to events in other colonies?
2. What is the authority for such a code in Carleton's eyes?
D. Why is a *draft* version of a document officially rejected by Carleton part of the Canadian Constitution?
E. Compare Carleton's 1768 proposal with the Canadiens petition of 1773?
1. Idea of unique status vs idea of rights as Englishmen
2. What is the French-Canadien view of the 1764 appointment of Murray (advent of civil government)
3. How did the administration of Murray affect French Canadian theories of their legal status?
4. Why do French Canadiens demand their rights as Englishmen? (status before the law?)
What were the terms and circumstances of the Quebec Act of 1774?
1. Why was the Quebec Act implemented? (Riddell, pp. 9-17)
2. How did it compare with the Proclamation of 1763? (based on the proclamation with modifications)
a. Act vs Proclamation?
b. Civil Law? (asserts Canadian precedent as legitimate law)
c. Religious Freedoms? (alternate oath of allegiance to the crown--p. 91)
d. Criminal Law? (English system continued from 1763 proclamation
e. Status of Indians and Indian "reserve"?
3. Why did English colonists outside Quebec consider it "intolerable"?
4. What was the British purpose in the Quebec Act? (responsiveness to Canadian subjects of the crown?)
5. How did the Quebec Act compare with Carleton's recommendations? Demands of Canadiens?
G. What was the make-up of the first legislative council of Quebec (1775) under the 1774 act?
1. appointive council (by governor) of 17-23 required (to govern population of 70,000)
2. the first council included 8 French Catholics out of a total of 22 councilors
3. King retained veto power and asserts Crown and Parliamentary authority over the colonies
H. What was the make-up of the first legislative council of Quebec (1775) under the 1774 act?
1. appointive council (by governor) of 17-23 required (to govern population of 70,000)
2. the first council included 8 French Catholics out of a total of 22 councilors
3. King retained veto power and asserts Crown and Parliamentary authority over the colonies
I. How did advocates of revolution reconcile constitutional authority and violent insurrection?
1. What were Colonial responses to the Quebec Act? (in Quebec? in New England?)
2. Compare the Primary concerns of the Declaration of Independence with the terms of the Quebec Act?
a. Rights of grievance? responsiveness of government?
b. Protection from enemies? security and liberty?
c. Consent of the governed?
J. Compare the Primary concerns of the Declaration of Independence with the terms of the Quebec Act?
1. Rights of grievance? responsiveness of government?
2. Protection from enemies? security and liberty?
3. Consent of the governed?
Kruman Text:
K. How did the concept of “negative” government affect republican ideology of the revolutionary era?
1. what was "republicanism" and how did it affect ideas about constitutional forms?
2. what does Krum mean by "constitution by sovereign command?" (p. 9)
3. what did the revolutionary constitutions cite as the source of their authority? (natural law? the people?)
3. why did revolutionaries insist on written, state constitutions?(Krum, p. 7)
a. who drafted them? (example of Massachusetts and constitutional convention of 1779-80)
b. how were state constitutional conventions established and why?
c. how were state constitutions ratified? by whom? why?
L. How did state constitutions adopted during the revolution compare with Lockean principles??
1. Why did South Carolina and New Hampshire ask Continental Congress to authorize state conventions? (p. 20)
a. what was the perceived advantage of a convention over legislatures? (pp. 22-23)
1. "temporary" bodies would have no "vested interest" in the outcome? (p. 22)
2. ratification of the new constitution would "dissolve" existing legislatures?
3. Why did patriots consider "temporary" congresses more legitimate than "regular" legislatures?
b. why was it important to separate constitution-making from legislating? (British common law?)
2. Why was the Pennsylvania Constitution of 1776 more radical than many others? (p. 24-25)
a. Pennsylvania assembly opposition to independence spurred radicals to bolt and form new govt
b. radicals sought legitimacy from Continental Congress (after losing elections of 1 May 1776)
c. radicals claimed the assembly invalid because it ruled under authority of the King
d. radicals claimed authority as representatives of "the people" (Continental Congress?--p. 25)
e. radical campaigns in PA forced them to articulate their ideas about the origins of legitimate govt
f. rights guaranteed (not granted) by the constitution!!!
3. What were Primary concerns of the Pennsylvania Constitution? (note prison reforms and "hard labor"?)
a. How did the Pennsylvania Constitution differ from the Declaration of Independence? (note
"pursuing and obtaining happiness and safety" is a natural right!)
1. note that over 90% of PA white males eligible to vote for convention delegates (p. 26)
2. note that only those who took a "loyalty" oath (patriots) were eligible to vote!!
3. note that the convention also legislated (against Indians! p. 27)--contrast w/ Delaware's!(p. 29)
b. How did the Massachussetts convention of 1777 differ from the PA convention?
1. note that the General Court "resolved itself into convention" (p. 31)
2. how "temporary" was the convention? How separate was it from the General Court?
3. why was the resulting constitution rejected by the electorate in 1778? (p. 32)
F.
4.
why was the constitution of 1779 ratified by the electorate in 1780?
Timeline of Rights Constitutional Documents in English Tradition, 1215-1690
a. Magna Carta (1215)--fundamental, "natural" law and balance of authority and liberty
b. Virginia Charter (1606)--business framework of government
c. Virginia Articles, Law, and Orders, Divine, Politic, and Martial (1610-11)
d. Virginia "Ordinance and Constitution … for a Council of State and General Assembly" (1621)
e. Mayflower Compact (1620)
f. Proprietary charter to Cecilius Calvert, second Baron Baltimore (1632--Maryland Charter)
g. Fundamental Orders of Connecticut (1636)--"first written constitution in America", no reference to King or
mother colony (Massachussetts)
h. Pennsylvania Frame of Government (Penn, 1682)--see Hsueh text
i. Pennsylvania Great Charter and Frame (Penn, 1683)--see Hsueh text
j. Pennsylvania Charter of Liberties (Penn, 1701)--see Hsueh text
k. John Locke's Two Treatises on Civil Government (1690):--see Hall text
1. attempt to rationalize the Glorious Revolution
2. emphasis on individuality, private rights, government by consent, right of revolution
4. Terms:
Magna Carta (1215)
Virginia Ordinance and Constitution (1621)
Mayflower Compact (1620)
Pennsylvania Charter of Liberties (1701)
John Locke (Two Treatises, 1690)
Maryland Assembly (first meeting, 1637)
Seigniors
Habitants
Articles of Capitulation of Quebec (1759)
The Conquest (1760)
Intendent
An Act Touching Indians (1638)
A Relation of Maryland
the "Advice, Assent, and Approbation" clause
republicanism
the "rule of law"
Nanitokes (Eastern Shore)
Constitution of the Company of New France (1627)
Articles of Capitulation of Montreal (1760)
Martial Law
"decapitation" thesis
Cure
Proclamation of 1763
Jeffery Amherst (g. 1760-63)
Guy Carleton (g. 1768-1775)
"Intolerable Acts" (1774)
Pennsylvania Constitution (1776)
Paris Peace of 1763
James Murray (g. 1764-67)
Quebec Act (1774)
Declaration of Independence (1776)
Massachussetts Constitution (1780)
constitutional mobs (Thomas Hutchinson, 1768)
Pennsylvania Constitution (positive govt 1776)
Positive government
Responsible government
republicanism (Jefferson, Paine)
"hard labor" (reforming purpose of prisons)
constitutional conventions
Popular Sovereignty Act (US, 10-15 May 1776)
Thomas Paine (negative government)
Declaration of Rights of Inhabitants of …Pennsylvania
Negative government
natural law
working schools (Locke's Thoughts concerning education)
liberal individualism
Massachusetts Constitution (1780)
revolutionary (provincial) congresses
M.