Enjoyed my dust-up with Brian Tamanaha yesterday. Now, back to the survey. Before leaving the colonial period, I'm interested in the impact that Christopher Tomlins has had on lectures and source readings.
Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865 (New York: Cambridge University Press, 2010) received impressive accolades, perhaps greater than any book in recent memory. But how does it change the way we teach the colonial period?
Divided into ten chapters, the book’s first part
tells the story of how British theorists provided the legal imaginaire
necessary for the “manning” of the North American colonies (Chapter 1), the
“planting” of those colonies (Chapter 2), and finally the “keeping” of English
holdings in the New World (Chapter 3) in part through the creation of
“apparatuses of government,” designations of “status,” and the exposition of
imperial legalisms like imperium and dominium (FB, pps. 89, 116). Off the bat, this is a very different story from the one presented to students in most legal history texts. Take, for example, my favorite
Hall, Finkelman, and Ely's American Legal History: Cases and Materials. HFE dedicates its first five sections to a set of materials that make it appear as if the two main heirlooms carted by colonists to the New World were individual rights and the common law. Tomlins
focuses, by contrast, on imperial planners like John Dee and
the Hakluyt cousins, challenging Jack Greene’s argument that
British designs for colonial America were “failures” (FB, p. 184) Instead, Tomlins demonstrates that English legal minds provided the “means to express and implement colonizing and
expansion and displacement,” in essence guiding the settlement of the United States (FB, p. 184). This last point is important. While HFE presents documents like Locke's Fundamental Constitutions of Carolina as "exotic" and "far outside the mainstream of American constitutional development," (HFE, p. 30) Tomlins counters that the "discourse of territorial appropriation, occupation, and improvement" that was "ubiquitous" in these charters "was embraced everywhere." (FB, p. 184) So, perhaps a modification to HFE's note on the Constitutions of Carolina is in order? If not, Finkelman and Ely may want to push back by including an excerpt from King George's Royal Proclamation of 1763 in their next edition. In a review I wrote for the Wash U's legal history reading group last spring, I raise this document as a challenge to Tomlins's argument about the guiding role of British imperial policy in North America (follow this link). Not only did England’s King try to stop settlers
from manning western lands, in other words, he did so to protect the “nations
or tribes of Indians with whom We are connected.” (RP of 1763) While Tomlins claims that “the narrative of
English colonizing” was one that “progressively banish[ed] existing inhabitants
to the margins of its consciousness,” this fails to describe British imperial
policy following the pivotal French and Indian War, a war that convinced
England to discourage expansion in order to guarantee that Native Americans not
be “molested,” or “disturbed.” (RP of 1763) Rather than an orderly procession of British
imperial ideas, in other words, western settlement defied almost all forms of legal ordering,
ultimately pushing the nation to a series of untenable compromises resulting in
Civil War. Here, Tomlins’s focus on
slavery and the Civil War is backwards. Rather
than mark the end of English patterns of colonialism, the war arguably marked a
return to imperial modes worked through indigenous legal/imperial forms like
the Homestead Act and the Federal Income Tax.
Indeed, the North’s victory in the Civil War set the stage for America’s
truly imperial moment, forged in Hawaii, the Philippines, and the Jim Crow
South – a moment very different from the unregulated chaos of the Early
Republic.
