America's Forgotten Constitutions

Robert L. Tsai

• Publisher: Harvard University Press
• Year: 2014
• ISBN:
  9780674369436
• Topic: Law
• Subtopic: Public Law
• Index: Law

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: "We the People." Robert Tsai's gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion—the defiant groups that refused to accept the Constitution's definition of who "the people" are and how their authority should be exercised. America's Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a new constitution. He examines the alternative Americas envisioned by John Brown (who dreamed of a republic purged of slavery), Robert Barnwell Rhett (the Confederate "father of secession"), and Etienne Cabet (a French socialist who founded a utopian society in Illinois). Other dreamers include the University of Chicago academics who created a world constitution for the nuclear age; the Republic of New Afrika, which demanded a separate country carved from the Deep South; and the contemporary Aryan movement, which plans to liberate America from multiculturalism and feminism.Countering those who treat constitutional law as a single tradition, Tsai argues that the ratification of the Constitution did not quell debate but kindled further conflicts over basic questions of power and community. He explains how the tradition mutated over time, inspiring generations and disrupting the best-laid plans for simplicity and order. Idealists on both the left and right will benefit from reading these cautionary tales.

CHAPTER ONE

The Republic of Indian Stream

1832–1835

It was a unique political establishment, one of the smallest and most democratic in history.

—EDWIN M. BACON, The Connecticut River, 1907

The revolutionary fervor that culminated in the U.S. Constitution did not dissipate after the document’s ratification. Instead, as Gordon Wood describes, an impulse to challenge authority infected “every institution, every organization, every individual. It was as if the American Revolution had set in motion a disintegrative force that could not be stopped.” Far from arresting this dynamic, the founding generation’s ingenuity ushered in an age of political development and commercial enterprise in which higher law played increasingly elaborate functions. Americans authored state, local, and civic constitutions to liberate themselves from the past. When conventional political forms were not feasible or did not suit their needs, citizens initiated more ambitious experiments.¹

After ratification of the 1787 Constitution, Americans continued to practice frontier sovereignty, a theory of self-governance predating the Founding. This popular approach to the law entailed two contradictory tendencies. One constructive tendency involved incentivizing economic development and consolidating political power. The goal was to make the revolutionary utterly conventional—ordinary, coherent, and efficacious. Another, more destructive tendency, involved harnessing the spirit of experimentalism and destabilizing boundaries and existing legal systems. This destructive dynamic proved integral to the logic of frontier politics and necessary for its spread. It also often led practitioners to write another round of laws to curb the theory’s more corrosive features.

An early exercise in pioneer sovereignty can be discerned in the founding of the Republic of Indian Stream, in a territory of roughly 282 square miles nestled between modern-day Quebec and New Hampshire. The bucolic valley, located just above the forty-fifth parallel, is marked by three tributaries feeding into the Connecticut River. Mainly visited by American Indians and the occasional trapper or hunter, the area attracted the attention of land speculators at the turn of the nineteenth century. Within a few decades, the hopes and dreams of the settlers had merged with the land, and early forms of democratic government began to take root.²

This largely forgotten exercise in self-governance arose from an international dispute between England and the United States over the territory. The end of the Revolutionary War left many issues unresolved, including the boundaries between Canada and the states of New Hampshire and Maine. The Treaty of Paris had specified the border as “the northwesternmost head of the Connecticut River.” England took this to be the Connecticut River itself, whereas New Hampshire interpreted the provision to mean Hall’s Stream.³ Two land companies, the Eastman Company and the Bedel Company, competed for dominion of the territory and its prospects. They lured settlers to the region and, in the process, unwittingly pushed them toward independence. Rumors spread through Indian Stream that Canada would guarantee the settlers’ land claims and give them significantly larger lots if they would agree to support England’s claim to the territory. Meanwhile, others hoped that New Hampshire would take steps to secure their property rights and reward their labors to extend America’s westward borders.

Of the pioneer who plunged into the forests and forged democratic institutions, Tocqueville offered this telling profile:

Everything about him is primitive and uninformed, but he is himself the result of the labor and the experience of eighteen centuries. He wears the dress, and he speaks the language of cities; he is acquainted with the past, curious of the future, and ready for argument upon the present; he is, in short, a highly civilized being, who consents, for a time, to inhabit the backwoods, and who penetrates into the wilds of a New World with the Bible, an axe, and a file of newspapers.⁴

Settlers rebelled against existing modes of life, dissatisfied with their prospects. These adventurous Americans believed that their destiny was to conquer new lands, disrupt existing political orders, and be rewarded for their industriousness and foresight. As they occupied land and worked the earth, pioneers developed new theories about law and politics. Their view of popular sovereignty was inextricably linked to territory: control of a parcel of land and productive work of it, rather than paper title, generated true authority to govern. The frontier mindset—which prized durability, self-reliance, experimentalism—discovered in natural law a compatible belief system, which could seamlessly justify efforts to gain dominion over nature and other human beings as the exercise of God-given rights.⁵

Frontier sovereignty was fueled by individual impetus to migrate, but it was also nurtured by policies favoring economic development and the lax enforcement of laws that stood in the way of settlement. Once the labor of pioneers mixed with the land, they turned to writing laws and constitutions to preserve their investment of human capital. But nation building through pioneer sovereignty necessarily entailed conflict with competing claimants, whether they were nation-states or Indian tribes. Thus, the project demanded the deliberate playing of sovereigns and other interested parties against one another, a gambit that proved ever more complicated as a constitution matured and a greater sense of order was expected. Most of the time, experiments in frontier sovereignty turned into conventional territories, counties, or states.⁶

Somewhere along the way, however, a familiar tale took a turn off the beaten path in the case of Indian Stream. Pulled in different directions, fearing a return to a lawless state of nature, residents of the territory took a stand. Instead of awaiting resolution of the boundary dispute, they announced the establishment of the Republic of Indian Stream, “a free, sovereign and independent state.” Exultant on that day in June of 1832, each man solemnly swore to defend the “inviolate” constitution. For the next three years, the people of Indian Stream went their own way.⁷

Though theirs was merely one of several determinist movements during this period, it must be counted among the stronger assertions of American sovereignty. The efforts of Indian Stream’s people to free themselves from their neighbors pitted them against the governments of Canada, New Hampshire, and the United States in a drama that played out through diplomacy and the actions of multiple sovereigns to enforce their own laws. The experience of these settlers, along with the responses of government officials, identified the possibilities and limitations of pioneer constitutionalism.⁸

When Pioneers Become a People

A confluence of favorable conditions led the Indian Stream migrants to turn to constitutional law to solve their problems. The boundary dispute between the United States and England created a lacuna that commercial interests and adventurous souls exploited. Authorities’ efforts to encourage prospecting, exploration, and exploitation of the land served as a crucial engine of constitutional transformation. Although friction among the relevant political actors later increased in frequency and degree, states initially had a reason to look the other way as settlers seized the initiative in populating the region. While unspoiled, the area did not appear to yield essential natural resources that might have made the Upper Connecticut Valley a national priority. Neither the United States nor England hurried to resolve the boundary issue—other matters seemed more pressing between the two nations, and a certain legal ambiguity promoted the peace. Adding to the need to tread carefully, British soldiers remained in the region until 1795. American interests could be quietly promoted in the early days of the Republic through settler sovereignty until it became necessary for firmer positions to be taken.⁹

Settlers used deeds to acquire land from native peoples, even when doing so violated existing laws. In exchange for the right of heirs and “sucksessors and all Indian tribes forever” to hunt and fish on the land and for food and clothing for himself and his squaws, Chief Philip of the St. Francis tribe deeded to Thomas Eames and his friends a tract of land covering most of present-day Coos County, the territory of Indian Stream, and a portion of lower Canada. This deed served as the basis of the Eastman Company’s claim on the land. Later, some members of the St. Francis tribe repudiated Philip’s authority to speak on the tribe’s behalf and conveyed the northern half of modern-day New Hampshire to the Bedel Company for $3,100.

Though duly recorded, these competing deeds were of dubious legality. Federal law at the time prohibited individuals from buying land from Indians. Even so, unpredictable enforcement of these laws meant that few were deterred from gaining control of desirable land or from seeking ways of improving their claims to lands seized under problematic legal circumstances. Indeed, the Eastman Company repeatedly sought legislative approval of its title from New Hampshire. Its lawyers even devised a legal strategy for getting around federal law should it ever come to that. The common law and the language of natural rights gave a veneer of legitimacy to the enterprise, lured individuals to the region, and displaced tribal sovereignty. According to the logic of frontier lawmaking, productive improvements to the land could be cited to win the state’s approval of inhabitants’ legal arrangements after the fact. Once New Hampshire legitimated settlers’ actions, odds were good that federal authorities would defer to the state’s view of land ownership.¹⁰

The rivalry between the speculating enterprises heated up around 1819, when Jeremiah Eames was lured away from Eastman to the Bedel Company. In the contest for the hearts and minds of settlers, the two companies surveyed the land aggressively and campaigned hard by offering inducements. The Eastman Company distributed tea, tobacco, and rum; promised to subsidize improvements to the land; and asked inhabitants to execute documents clarifying that they held title through the corporation. Elaborate bids to win the settlers’ favor continued until 1830 when the two companies merged, in a last-ditch effort to pool resources and improve the proprietors’ petitions to the New Hampshire legislature.

Inhabitants became accustomed to a frontier lifestyle insulated from the constant supervision of authorities. Except for intermittent enforcement actions by lawmen from nearby counties or Canada, the law was what the population of Indian Stream determined. It was in the nature of such an existence that public identities and political allegiances became more fluid. As a culture of self-governance took hold, civic identities changed. Visitors became squatters and putative landowners; surveyors and speculators began to see themselves as statesmen. To mold the place in their own political image, these New Englanders adapted civic traditions to the wilderness. Town meetings, which started as annual affairs and informal gatherings to build roads and schools, eventually gave way to regular assemblies with moderators, agendas, committees, and deliberative protocols.

So far, the same story could be told of thousands of settlements across America. In this instance, however, political forces converged to create an existential crisis that led the denizens of Indian Stream to declare independence. Early on, New Hampshire used its own courts to establish the State’s jurisdiction over the contested land and to try to evict squatters. After encouragement from the New Hampshire legislature, the state’s attorney general brought trespass suits against two Indian Stream residents, Ebenezer Fletcher and Abner Hyland. In 1823, the state won a judgment declaring the settlers “intrudors on that ground.” But obtaining judicial decrees was one thing; enforcing them would prove to be quite another.¹¹

In 1824, legislative actions further spurred the inhabitants’ transformation in political identity. Three measures were considered by the New Hampshire legislature. One bill rejected proprietors’ title claims and incorporated into New Hampshire all land north of the forty-fifth parallel and outside of already acknowledged borders. Another resolution ended further prosecution for squatting and, in consideration of the labor performed and hardships endured by residents, quieted title to each settler in his actual possession up to two hundred acres. A third measure empowered the state to hand over the contested land to the Eastman Company alone. The first two measures were enacted into law, while the third failed.¹²

This legislative compromise, known as “the Resolve of 1824,” sent mixed messages. From the perspective of New Hampshire, the inhabitants of Indian Stream would now be recognized as landowners while remaining citizens of the state. At the same time, the inhabitants understood that the state plainly had no quarrel with their presence on the land, especially as it dovetailed with officials’ desires to strengthen, clarify, and perhaps extend the state’s boundaries. To the extent settler sovereignty aligned with New Hampshire’s efforts to consolidate its borders, settlers learned that previous illegalities could be sanctified.

Intended or not, this event accelerated the fusion of the inhabitants’ sense of belonging with the land—apart from the commercial interests of squabbling companies. Pioneer sovereignty, with its emphasis on self-determination and civil rights, helped individuals break the link between corporations and land. And despite legislators’ hopes, the legislation did little to increase allegiance to New Hampshire, especially among settlers whose land fell outside the terms of the Resolve. Having ratified the people’s extralegal measures to occupy and work the land, the legislation gave proof that unconventional methods of pioneer sovereignty could pay off. Unlawful or questionable actions to acquire property could ripen into legal entitlements. Far from preserving the status quo, migration, land transfers, and improvements of the area continued unabated.

In 1829, the people of Indian Stream began to take steps toward independence. A five-member group selected in General Meeting on March 17, 1829, became known as the “Committee of Safety for the General Security.” Led by Luther Parker, the committee submitted a petition to the New Hampshire legislature praying for a resolution of land disputes that would exclude a role for the Eastman Company. Parker, formerly a teacher in Albany and Stratford, had resettled in Indian Stream, where he operated a general store. He quickly rose to a leadership position within the independence movement.¹³

The 1829 petition offers clues that settlers had grown fond of a particular locale and were more than capable of organizing themselves for a common purpose. Parker and other members of the committee claimed to speak “on behalf of the inhabitants of Indian Stream.” Originally organized to facilitate the primitive political society’s mutual defense pact, the group’s tasks quickly grew to encompass taking “measures to secure them in possession of their lands.”¹⁴

The petition listed a series of grievances of “the inhabitants of Indian Stream.” Members of the committee realized that it was not enough to seek a remedy from New Hampshire authorities; they also had to undermine corporate claims to speak for the people. Foremost among the complaints were unfulfilled promises by the Eastman Company to subsidize local development. In support of their request to “release the right of the title the state hath or may have to each settler,” the committee’s petition documented improvements made to the land by the settlers themselves. Insofar as this petition opposed the Eastman Company’s efforts to gain legislative sanction of its program, this action signified something ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Preface
• Epigraph
• Prologue
• 1. The Republic of Indian Stream, 1832–1835
• 2. The Icarian Nation, 1848–1895
• 3. John Brown’s America, 1856–1859
• 4. Confederate Anxieties, 1860–1865
• 5. The Sequoyah Convention, 1905
• 6. A Charter for the World, 1947
• 7. The Republic of New Afrika, 1968
• 8. The Pacific Northwest Homeland, 2006
• Epilogue
• Notes
• Index