2011 March 30
Constitutionalism and traditions of authority in the colonial era HST 486
1. Administrative:
A. Discussion Assignments (circulate sign-up sheet for week 2)
B. Questions/concerns about texts or course requirements?
2. This Week: What was the nature of constitutional authority in Colonial North America before 1700?
A. Problem of Nationalistic blinders in dealing with constitutional history:
1. the trap of inevitability
2. the cult of "the" constitution in the United States (only one constitutional convention?)
3. politically-inspired "presentism" and the trap of "original intent"
4. the Canadian tradition of many constitutional conventions
B. Method of Comparative history to understand constitutional history:
1. exploration of processes of cause-and-effect
2. chronology/geography defined to maintain context and relevance
3. emphasis on regional variation and variability of intent
Readings Based Discussion:
A. CITM Text: French context of colonial authority: t
1. How do French traditions of colonial authority differ from British traditions of colonial authority?
a. rights of citizenship, property, and political representation?
b. rights of religious expression?
2. Structure of French Colonial Authority (see on-line chart): Constitution of the Company of New France
(Richelieu, 1627):
a. Governor (appointed by King from nobility) with powers in New France akin to King of France
b. Intendent (appointed by King)--represents interests of the King, financial affairs, police, justice
c. Council (appointed by Governor)--judicial, legal, administrative roles
d. Cure (appointed by Cardinal)--priestly authority (see articles of capitulation)
e. seigniors--land-owners (mostly nobles)/feudal laords
f. habitants (censitaires)--tenants linked to seigniorial estates subject to corvee labor and militia draft
C. CITM Documents: The Conquest and the transfer of authority to British control
1. Lords of Trade to Governor Lawrence(1756)
2. Articles of Capitulation, Quebec(1759)
3. Articles of Capitulation, Montreal (1760)
a. what is the status of property in the articles?
b. what is the status of religious expression in the articles?
c. what is the status of the people of New France under the articles?
d. what is the status of Native American Indians under the articles?
4. the "conquest" and "decapitation theory
5. overlay of Civil Law of Rome administered under Common Law of England
D. 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. How did "conquest theory" compare with Lockian principles of authority and virtue?
E. Hsueh Text: pp. 1-24: “Unsettling the Empire of Uniformity”
1.
2.
3.
What does Hsueh mean by the term “hybrid constitution” and what does it imply about the nature of constitutional
authority in colonial North America?
a. What were the implications of colonial charters for colonial recruitment and settlement?
b. What does Hsueh mean by the argument that these charters operated rhetorically (“performative
quality”)?
c. What is the difference between statutory and common law in the English tradition?(pp. 9, 35-36)
d. What does Hsueh mean by the concept that the English Constitution was “polyvocal”? (pp. 10-11)
e. How does the “polyvocal” character of the English tradition relate to the concept of “simultaneous”
apprehension of meaning that Hsueh describes (pp. 13-15)
f. What is the relation of “locality” to power relations in the proprietary system? (concept of “Onontio”—
pp. 15-17)
g. What are the implications of a multi-ethnic tradition in North America for the practice of authority under
proprietary grants? (pp. 16-18)
h. How does Hsueh describe the role of treaties with indigenous people in relation to constitutional
authority? (pp. 22-24)
How did consititutional authority differ among the various colonies before 1763?
How did the era of imperial wars (1680s-1760s) affect ideas about legitimate constitutional authority in North
America?
F.
Hsueh Text, pp. 25-54: “Not Repugnant or Contrary”: Law, Discretion, and Colonial Founding in Maryland”
1. How did Lord Calvert's grant address indigenous claims, ca. 1632? (see p. 33?)
2. How did the Maryland Charter relate to Virginia claims?
3. What does Hsueh mean by the term "discretion"? (pp. 26-27)
4. How did the death of the elder Lord Baltimore affect the authority of the charter for Cecilius Calvert?
a. Why did Calvert publish A Relation of Maryland"
b. What features of the landscape did Calvert emphasize in that publication? (pp. 29-30)
c. What were the implications of the charter's reference to the "palatinate of Durham" (a 1300sera feudal framework of authority)?
d. What authority did Calvert gain under the charter, and what limitations did he face?
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)
c. How did the charter address religious liberty? (pp. 38-39)
d. What was the significance of "Oral Performance" of the charter at first landing of the Ark (p.
41)
e. What does Hsueh argue was the significance of the fact that "most Englishmen familiar with
local indigenes were primarily traders"? (pp. 43-44)
i. how did the fur trade influence the Implementation of the Maryland Charter?
ii. What was the relation between the Nanitokes (Eastern Shore) and the Iroquois? the
Dutch? How did this affect the implementation of the charter?
6. What were the priorities of the first meeting of the Maryland Assembly (1637/8)? (pp. 46-48)
7. What was the purpose and intent of "An Act Touching Indians" (1638)?
8. How did traditions of hand-copying laws affect meaning and Implementation of laws? (versions?)
9. Who controlled the texts of the laws? Meaning? (textual meanings and oral performance?
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
3. 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