Reviewed by Bill Offutt | Book Review | The William and Mary Quarterly, 65.3

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Reviewed by Bill Offutt | Book Review | The William and Mary Quarterly, 65.3 | The History Cooperative

Reviews of Books

Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830. By Daniel J. Hulsebosch. Studies in Legal History. Chapel Hill: University of North Carolina Press, 2005. 504 pages. $45.00 (cloth), $24.95 (paper).
Reviewed by Bill Offutt, Pace University
Daniel J. Hulsebosch's closely reasoned book examines constitutional thinking in New York as the colony mutated from an isolated outpost on the frontier of the first British Empire to a new state that was central to a new nation. One key social fact essential to an expanding empire—geographic mobility of populations—led to the radical reworking of American constitutional thinking by destabilizing fundamental English principles of legal control. Thus developed "the intellectual transformation in the idea of law on which colonial resistance was premised: the shift from jurisdiction to jurisprudence, the rules in a legal system to the rule of law, English liberties to American liberty" (10). Ultimately, then, it was not extralegal action by the people out of doors, nor was it constitutional conventions or ratification votes that best embodied the sovereign will. Rather, "relentless mobility was the paramount expression of popular sovereignty in America" (10). In the new American nation, "the hard fact of mobility—of popular disregard for jurisdiction in the traditional sense of legal boundaries of both liberty and power—was a fundamental fact of early American constitutionalism" (11). To control this unbounded people, the British tried armies and agents to little avail; American constitutionalists sent lawyers rather than guns and money, and that worked.	1
Hulsebosch first establishes the centrality of jurisdiction to the British conception of law. In the British Isles, the successful exercise of legal rights depended on selecting the right court out of over one hundred possible choices. Cases and commentators attempted to clarify the legal rules that should prevail (or, in the case of common law, not prevail) within the empire through jurisdictional reasoning. Colonists moved into the new spaces of that empire with their own notions of law and liberties—of rules rather than jurisdictions—and began to detach remedies for violations of norms from particular courts, putting what they conceived as the common law into practice. Although Hulsebosch glosses over the pluralistic sources of law in colonial attempts at systemic legal reform, he correctly analyzes the radically simplified jurisdictional structure of New York. In the county and provincial courts, a hierarchical (vertical) system prevailed; attempts to set up separate (horizontal) jurisdictions such as equity failed as New York courts used whatever law seemed appropriate. Common-law principles became "transcendent" (69) and New York's assembly confirmed "the transatlantic migration of common laws" (69) regardless of William Blackstone's efforts at standardization.	2
Turning to the crisis of 1750–77, Hulsebosch builds on the work of John Phillip Reid and Jack P. Greene, who have argued for dual (and dueling) constitutions within the first British Empire, one for the center and one for colonies.¹ He finds a third constitution, one that operated on the frontiers of Euro-American settlement. This constitution was the outcome of a three-sided debate: imperial agents versus the "creole provincial elite" (76) versus the "frontier settlers and oceangoing sailors who moved freely across the empire's borders" (76). Although Hulsebosch doesn't have much more to say about sailors, he examines how New York's frontier settlers did confront activist imperial agents whose "pursuit of the empire largely was the empire" (83) and who sought to remove common-law elements "that obstructed imperial policy: property-law doctrine, the jury, and the personnel of the legal system" (105). In response, settlers defined their fundamental constitutional principles: the right to mobility, the right to freehold tenure in land, the right to jury trial of the neighborhood, and the right to call on common law. Although many of these claims were compatible with the "second" constitution's claims, the provincial elite's authority did not extend to the area of the "third" constitution, where rights were defended by and in front of men like themselves according to common law and their own customs. Therefore, Hulsebosch concludes that "the mobility that lay beneath colonization, when coupled with common-law constitutionalism, was the primary cause of the Revolution" (143). Here is a hedgehog and not a fox, a lumper and not a splitter.	. . .

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