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Empires of Writing: Britain, America and Constitutions, 1776–1848

Published online by Cambridge University Press:  03 April 2014

Extract

Approximately 50 years ago, R. R. Palmer published his two volume masterwork The Age of the Democratic Revolution. Designed as a “comparative constitutional history of Western civilization,” it charted the struggles after 1776 over ideas of popular sovereignty and civil and religious freedoms, and the spreading conviction that, instead of being confined to “any established, privileged, closed, or self-recruiting groups of men,” government might be rendered simple, accountable and broadly based. Understandably, Palmer placed great emphasis on the contagion of new-style constitutions. Between 1776 and 1780, eleven onetime American colonies drafted state constitutions. These went on to inform the provisions of the United States Constitution adopted in 1787, which in turn influenced the four Revolutionary French constitutions of the 1790s, and helped to inspire new constitutions in Haiti, Poland, the Netherlands, Switzerland, and elsewhere. By 1820, according to one calculation, more than sixty new constitutions had been attempted within Continental Europe alone, and this is probably an underestimate. At least a further eighty constitutions were implemented between 1820 and 1850, many of them in Latin America. The spread of written constitutions proved in time almost unstoppable, and Palmer left his readers in no doubt that this outcome could be traced back to the Revolution of 1789, and still more to the Revolution of 1776. Despite resistance by entrenched elites, and especially from Britain, “the greatest single champion of the European counter-revolution,” a belief was in being by 1800, Palmer argued, that “democracy was a matter of concern to the world as a whole, that it was a thing of the future, [and] that while it was blocked in other countries the United States should be its refuge.”

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Copyright © the American Society for Legal History, Inc. 2014 

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References

1. Palmer, R.R., The Age of the Democratic Revolution: A Political History of Europe and America, 1760–1800, 2 vols. (Princeton: Princeton University Press, 1959–64)Google Scholar, I:v, 4.

2. For lists of written constitutions during the age of revolutions, see Hill, Henry Bertram, “The Constitutions of Continental Europe: 1789–1813,” Journal of Modern History 8 (1936): 8284CrossRefGoogle Scholar; and Elkins, Zachary and Ginsberg, Tom, The Endurance of National Constitutions (Cambridge: Cambridge University Press, 2009), 215–21CrossRefGoogle Scholar. Such (differing) estimates convey only a limited idea of the scale of constitutional activism. In Northern Italy alone, thirteen new constitutions were drafted between 1796 and 1810: Woloch, Isser, ed. Revolution and the Meanings of Freedom in the Nineteenth Century (Stanford: Stanford University Press, 1996)Google Scholar, 222.

3. Palmer, Age of Democratic Revolution, II:459, 545–6.

4. Armitage, David, The Declaration of Independence: A Global History (Cambridge, MA: Harvard University Press, 2007)Google Scholar, 20, 103, 138; Subrahmanyam, Sanjay and Armitage, David, eds. The Age of Revolutions in Global Context, c.1760–1840 (New York: Palgrave Macmillan, 2010).Google Scholar

5. For the persistence and diversity of empire over time, see Darwin, John, After Tamerlane: The Global History of Empire since 1405 (London: Allen Lane, 2007).Google Scholar

6. See Larry Diamond, “A report card on democracy”, www.hoover.org/publications/hoover-digest/article/7310.

7. The Rosetta Stone (London: British Museum Press, 2005)Google ScholarPubMed, 32.

8. The long-distance deployment and circulation of texts by secular and religious authorities in order to spread ideas and influence was scarcely novel. However, increased levels of imperial competition and warfare after 1750, and the growth of towns, literacy, and printing outlets, led to governments and state agents—and some of those resisting them—to deploy texts and print on a greater scale than before, and not just in the West. Thus in 1787, the year of the drafting of the United States Constitution, the Imperial Household Department in Beijing completed its Comprehensive Treatises of our August Dynasty, a printed study of languages existing in the Ching Empire. These treatises were designed both for administrative and religious purposes, and to display and celebrate the Ching Emperor's reach and reputation. I owe this information to Mårten Söderblom Saarela.

9. Israel, Jonathan, A Revolution of the Mind: Radical Enlightenment and the Intellectual Origins of Modern Democracy (Princeton: Princeton University Press, 2010), 236Google Scholar.

10. Pryde, George S., ed. The Treaty of Union of Scotland and England 1707 (London: Thomas Nelson and Sons, 1950), 83Google Scholar. It has been suggested that this treaty's guarantee of the persistence of Scots law in tandem with English common law is one reason why a united British polity failed to generate a single codified constitution.

11. St. John, Henry, Bolingbroke, Viscount, A Dissertation Upon Parties; In Several Letters to Caleb D'Anvers (London: H. Haines, 1735)Google Scholar, 210; and Dickinson, Harry T., “The Eighteenth-Century Debate on the Sovereignty of Parliament,” Transactions of the Royal Historical Society 26 (1976): 189210CrossRefGoogle Scholar. As late as 1912, a leading Oxford jurist, Anson, William R., felt able to claim that “even thirty years ago educated men were slow to admit, that Parliament…has constitutionally a right to make any new law it pleases, to repeal any law, or to change or abolish any law”: Rights of Citizenship: A Survey of Safeguards for the People (London: Frederick Warne & Co, 1912), 88Google Scholar.

12. The degree to which Blackstone's Olympian style and posthumous reputation have sometimes covered over ambiguities and tensions in his arguments and ideas is carefully analyzed in Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), especially 3167.CrossRefGoogle Scholar

13. The Great Charter and Charter of the Forests, with Other Authentic Instruments (Oxford: Clarendon Press, 1759)Google Scholar, lix. James Madison famously advanced the charge that Westminster's power was “uncontrollable,” in Federalist No. 53 in 1788.

14. A radical interpretation of the Magna Carta as a barrier against undue power “either by Prince or state endeavoured” had persisted since the civil wars of the 1640s: Pallister, Anne, Magna Carta: the Heritage of Liberty (Oxford: Oxford University Press, 1971)Google Scholar, 15.

15. For an example, see Kammen, Michael, A Machine That Would Go of Itself: The Constitution in American Culture (New Brunswick: Transaction Publishers, 2008 [1986])Google Scholar, 91.

16. See, for example, Charles Willson Peale's 1790 portrait of Timothy Matlack with a copy of the constitution of Pennsylvania, on display at the Museum of Fine Arts, Boston. John Singleton Copley had already drawn on this pictorial convention before the Revolution, portraying Samuel Adams in 1772 pointedly gesturing toward a copy of the charter of Massachusetts.

17. Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, MA: Belknap Press, 1992 [1967])Google Scholar, 67.

18. Quoted in Fraser, Leon, English Opinion of the American Constitution and Government, 1783–1798 (New York: n.p., 1915)Google Scholar, 57.

19. Bruce, William and Joy, Henry, in Belfast Politics: Thoughts on the British Constitution, ed. Bew, John (Dublin: University College Dublin Press, 2005)Google Scholar, 52; for Fox, see The Parliamentary Register; or History of the Proceedings and Debates of the House of Common, 29 (1791)Google Scholar, 391. The view that the United States Constitution was heavily indebted to their own laws and political conventions remained common among nineteenth century British commentators: see Prochaska, Frank, Eminent Victorians on American Democracy (Oxford: Oxford University Press, 2012).CrossRefGoogle Scholar

20. Hulsebosch, Daniel, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005)Google Scholar, 4.

21. Foner, Eric, Tom Paine and Revolutionary America (Oxford: Oxford University Press, 2004Google Scholar [1976]), 3.

22. Paine, Thomas, Common Sense: Addressed to the Inhabitants of America (Philadelphia: R. Bell, 1776), 3132Google Scholar, 41–42.

23. Foner, Tom Paine, 191; Slauter, Eric, The State as a Work of Art: The Cultural Origins of the Constitution (Chicago: University of Chicago Press, 2009)Google Scholar, 39. By the 1790s, Paine, like many American revolutionaries, had become more eager to represent charters as quintessentially ancien regime grants from above, and, therefore, as texts that were utterly distinct from the new constitutions.

24. See Flanagan, Marie Therese and Green, Judith A, eds. Charters and Charter Scholarship in Britain and Ireland (Basingstoke: Palgrave Macmillan, 2005)CrossRefGoogle Scholar; and for the sometimes creative politics of charters in the seventeenth century, see Halliday, Paul, Dismembering the Body Politic: Partisan Politics in England's Towns, 1650–1730 (Cambridge: Cambridge University Press, 2003)Google Scholar.

25. Tomlins, Christopher, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America (Cambridge: Cambridge University Press, 2010), 157–58.CrossRefGoogle Scholar

26. Madison, James, Notes of Debates in the Federal Convention of 1787 Reported by James Madison, with an introduction by Adrienne Koch (New York: Norton, 1987)Google Scholar, 3. On both sides of the Atlantic, there has, however, also been a notable concern at intervals to stress the similarities between American and British constitutionalism; see Ian Bruce Mylchreest, “The Anglo-American Dialogue on Constitutionalism, 1860–1920” (PhD diss., Cornell University, 1988).

27. As cited in Parliamentary History of England from the Earliest Period, (London: T.C. Hansard, 1806)Google Scholar, vol. 23, 1315.

28. Benjamin, Walter, The Work of Art in the Age of Mechanical Reproduction, trans. Underwood, J.A. (London: Penguin Books, 2008), 150.Google Scholar

29. Loughran, Trish, The Republic in Print: Print Culture in the Age of US Nation-building (New York: Columbia University Press, 2009)Google Scholar, 21.

30. Fraser, English Opinion of the American Constitution, 55.

31. Palmer, Age of Democratic Revolution, I:263; in Britain, the texts of the state constitutions were extracted in The Constitutions of the Several Independent States of America (London: J. Stockdale, 1782)Google Scholar, and in Stokes, Anthony, A View of the Constitution of the British Colonies…at the Time the Civil War broke out on the Continent of America (London: B. White, 1783)Google Scholar. Both pamphlets appeared in several editions.

32. For a recent survey, see Billias, George Athan, American Constitutionalism Heard Round the World, 1776–1989: A Global Perspective (New York: New York University Press, 2009).CrossRefGoogle Scholar

33. The Republican (London, 1820) IV:229–30Google ScholarPubMed; for Carlile's analysis of the Spanish constitution, see ibid., III:11, 46, 88, 119, 164, 188.

34. Times (London), August 16, 1836.

35. Thus Daniel Robinson, a onetime Royal Navy officer who fought with the Spanish army, published his opinions and a translation of the Cadiz constitution in London in 1813, The Political Constitution of the Spanish Monarch proclaimed in Cadiz 19th of March 1812, dedicating it to a fellow British volunteer in Spain, Sir John Downe. For men of this sort and their mixed politics, see Rogers, Graciela Iglesias, British Liberators in the Age of Napoleon: Volunteering under the Spanish Flag in the Peninsular War (London: Bloomsbury, 2013).Google Scholar

36. Quoted in Rosen, Frederick, Bentham, Byron, and Greece: Constitutionalism, Nationalism, and Early Liberal Political Thought (Oxford: Clarendon Press, 1992)CrossRefGoogle Scholar, 124.

37. Racine, Karen, “‘This England and this Now’: British Cultural and Intellectual Influence in the Spanish American Independence Era,” Hispanic-American Historical Review 90 (2010): 423–54CrossRefGoogle Scholar; and see her “Imagining Independence: London's Spanish-American community, 1790–1829” (PhD diss., Tulane University, 1996).

38. Palmer, Age of Democratic Revolution, I:282. In February 1819, Bolivar urged the Second National Congress of Venezuela to study—without servilely imitating—the British constitution: “a monarchy in system, in which is acknowledged the sovereignty of the People, the division and equilibrium of power, civil freedom, liberty of conscience, and of the press, and every thing that is sublime in politics. A greater degree of liberty cannot be enjoyed in any kind of republic…I recommend that constitution as the best model to those who aspire to the enjoyments of the rights of man.” South American Independence! The Speech of His Excellency Gen. Bolivar (London: G. Young, 1819)Google Scholar, 20.

39. Collier, Simon, Ideas and Politics of Chilean Independence 1808–1833 (Cambridge: Cambridge University Press, 1967), 345–46.Google Scholar

40. Some admittedly crude indicators of this can be found by searching Google Books Ngram viewer. This suggests the rarity of the phrase “unwritten constitution” in works published in Britain before 1860, and its widening (though still uneven) use thereafter.

41. Cartwright, John, An Appeal on the Subject of the English Constitution (London: J. Johnson, 1797)Google Scholar, 15.

42. Ibid., 35; Cartwright, John, A Letter to the Duke of Newcastle (London: J. S. Jordan, 1792)Google Scholar, 101.

43. Cartwright, Frances D., ed. The Life and Correspondence of Major Cartwright, 2 vols., (London: Henry Colburn, 1826)Google Scholar II:389.

44. Ibid., I:361; II:67. For connections between Cartwright and other British radicals and Hispanic exiles, see Simal, Juan Luis, Emigrados: España y el exilio internacional, 1814–1834 (Madrid: Centro de Estudios Políticos y Constitucionales, 2012).Google Scholar

45. Ibid., II:390.

46. For a recent survey of the range of Bentham's interventions and interests, see Armitage, David, “Globalizing Jeremy Bentham,” History of Political Thought 32 (2011): 6382.Google Scholar

47. See, for example, McKennan, T. L., “Jeremy Bentham and the Columbian Liberators,” The Americas 34 (1978): 460–75CrossRefGoogle Scholar; and Hume, L. J., “Preparations for Civil War in Tripoli in the 1820s: Ali Karamanli, Hassuna D'Ghies and Jeremy Bentham,” Journal of African history 21 (1980): 311–22.CrossRefGoogle Scholar

48. That this was also Cartwright's view emerges strongly in his last known work, which appears to survive only in Spanish: Diálogo politico entre un italiano, un español, un frances, un aleman, y un ingles (London: Taylor, 1825)Google Scholar. In this imaginary dialogue between European constitutional reformers, the French spokesman is made to describe England (pp.7–8) as “in politics like another Holy Land…from which, with time, the art of government must be diffused to other nations,” and to remark how the United States Constitution “is a stream from that sacred fountain.” I owe this translation to Elena Schneider.

49. Williford, Miriam, Jeremy Bentham on Spanish America: An Account of his Letters and Proposals to the New World (Baton Rouge: Louisiana State University Press, 1980)Google Scholar, 4; for Burr's Mexican schemes, see O.Stewart, David, American Emperor (New York: Simon & Schuster, 2011).Google Scholar

50. Junctiana Proposal: Proposals for the Junction of the Two Seas – the Atlantic and the Pacific, by Means of a Joint-Stock company,” in The Works of Jeremy Bentham, 11 vols., ed. Bowring, John (Edinburgh: William Tait, 1843) II:558–68.Google Scholar

51. For some interesting discussions of how, more broadly, the age of revolutions “generated controversial new forms of politics, at once democratic and imperial…anticolonial and centralizing,” see Desan, Suzanne, Hunt, Lynn, and Max Nelson, William, eds. The French Revolution in Global Perspective (Ithaca: Cornell University Press, 2013).Google Scholar

52. Hesse, Carla, “Reading in extremis: Revolutionaries respond to Rousseau,” in Walton, Charles, ed. Into Print: Limits and Legacies of the Enlightenment: Essays in Honor of Robert Darnton (University Park, PA: Pennsylvania State University Press, 2011) 145–57.Google Scholar

53. Gourevitch, Victor, ed. The Social Contract and Other Later Political Writings (Cambridge: Cambridge University Press, 1997), xxii–iii, 4169.Google Scholar

54. See Jean-Jacques Rousseau, Constitutional Project for Corsica (last updated 2011) http://www.constitution.org/jjr/corsica.htm

55. Edmund Burke, Reflections on the Revolution in France, and on the Proceedings in Certain Societies in London Relative to that Event (Dublin: W.Watson, etc., 1790), 266.

56. See Woolf, Stuart, Napoleon's Integration of Europe (London: Routledge, 1991)Google Scholar, 127 and passim; and Broers, Michael, Hicks, Peter, and Guimera, Augustin, eds. The Napoleonic Empire and the New European Political Culture (New York: Palgrave Macmillan, 2012).CrossRefGoogle Scholar

57. Paquette, Gabriel, “The Brazilian Origins of the 1826 Portuguese Constitution,” European History Quarterly 41 (2011): 444–71CrossRefGoogle Scholar; I am grateful to Professor Sir John Elliott for a copy of his unpublished essay “‘Spaniards of Both Hemispheres’: A Constitution for an Empire.”

58. Edling, Max, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (Oxford: Oxford University Press, 2003).CrossRefGoogle Scholar

59. Mann, Michael, The Dark Side of Democracy: Explaining Ethnic Cleansing (Cambridge: Cambridge University Press, 2005)Google Scholar, 107; and Frymer, Paul, “Building an American Empire: Territorial Expansion in the Antebellum Era,” UC Irvine Law Review, 1 (2011): 913–54.Google Scholar

60. Rana, Aziz, The Two Faces of American Freedom (Cambridge, MA: Harvard University Press, 2010)Google Scholar, 94 and passim.

61. It is also the case that even authoritarian and imperially driven written constitutions could still work to advance certain freedoms, and/or might contain language and provisions that individuals on the receiving end could turn to their own advantage and use. See, for example, Grothe, Ewald, “Model or Myth? The Constitution of Westphalia of 1807 and Early German Constitutionalism,” German Studies Review, 28 (2005)1: 119Google Scholar.

62. This is despite the fact that, as Pierre Bordieu remarked, “The political field is…the site par excellence in which agents seek to form and transform their visions of the world and thereby the world itself: it is the site par excellence in which words are actions.” Thompson, John B., trans. Language and Symbolic Power (Cambridge: Cambridge University Press, 1991)Google Scholar, 27.

63. See, for example, the arguments of Lemuel D. Nelme in 1772 in support of the power of language and the need for an aggressive propagation of English as a national way to spread the gospel, by the medium of the BRITISH LANGUAGE, among nations who are now enveloped in darkness”: An Essay Towards an Investigation of the Origin and Elements of Language and Letters (London: T. Spilsbury, 1772)Google Scholar, 134.

64. In his Rights of Man (1791–92), Paine described America's new constitutions as being to “liberty what a grammar is to language: they define its parts of speech, and practically construct them into systems”: quoted in Mathias, Charles Mc C. Jr., “Ordered Liberty: The Original Intent of the Constitution,” Maryland Law Review 47 (1987)Google Scholar: 178.

65. Quoted in Sorenson, Janet, The Grammar of Empire in Eighteenth-Century British Writing (Cambridge: Cambridge University Press, 2000)Google Scholar, 89.

66. Benjamin Rush, quoted in Kammen, A Machine that Would Go of Itself, 398.

67. One aspect of this was the growing use, especially among British conservatives, of the phrase “paper constitution” to re-describe and diminish some written constitutions. The phrase seems to have emerged in the early 1780s, but only to have become widespread in Britain after the outbreak of the French Revolution.

68. Perhaps indicatively, this happened the year after the United States Senate voted to admit “stenographers and note-takers” to its debates; Amer, Mildred L., The Congressional Record: Content, History and Issues, (Washington, DC: Library of Congress, 1993).Google Scholar

69. Hansard Parliamentary Debates, 1st ser., vol. 10 (1812), 990.

70. Crawley, Charles W., “French and English Influences in the Cortes of Cadiz, 1810–1814,” Cambridge Historical Journal 6 (1939)CrossRefGoogle Scholar: 193.

71. Hansard Parliamentary Debates, 3rd ser., vol. 7 (1831), 411; vol. 9 (1831), 490–91.

72. Lynch, John, Simon Bolivar: A Life (London: Yale University Press, 2007), 202–3.Google Scholar

73. Tremenheere, Hugh Seymour, The Constitution of the United States Compared to our Own (London: John Murray, 1854)Google Scholar, x.

74. For the text of the New Ireland constitution, see Horst Dippel, ed. Constitutions of the World from the Late 18th Century to the Middle of the 19th Century Section 2, Part V, 9–12. <http://www.modern-constitutions.de/>

75. Ricotti, Carlo, “Il costituzionalismo britannico nel Mediterraneo (1794–1818),” Clio 27 (1991): 365451.Google Scholar

76. The vital raw material for this is Madden, Frederick, Fieldhouse, David, and Darwin, John, eds. Select Documents on the Constitutional History of the British Empire and Commonwealth (New York: Greenwood Press, 8 vols, 19852000)Google Scholar. The Whig member of Parliament and dramatist Richard Brinsley Sheridan and some other Irish and British political actors pointedly accused London of imitating, by the Act of Union of 1800–1801, French revolutionary zeal to impose new written constitutions on satellite states.

77. I will be developing these points and arguments in a future book provisionally entitled WordPower: Writing Constitutions and Making Empires.

78. Adelman, Jeremy, “An Age of Imperial Revolutions,” American Historical Review 113 (2008): 337.CrossRefGoogle Scholar

79. Quoted in Heydemann, Günther, Konstitution gegen Revolution: die britische Deutschland- und italienpolitik 1815–1848 (Gottingen: Vandenhoek & Ruprecht, 1995)Google Scholar, 66, 81.

80. Taylor, Miles, “The 1848 Revolutions and the British Empire,” Past and Present 166 (2000)CrossRefGoogle Scholar: 152.

81. The use of written constitutions to control and indoctrinate fast-moving and expanding pioneer populations was widely canvassed by mid-nineteenth century American and British writers. In 1848, for example, Frederick Grimké, a former Ohio Supreme Court judge, remarked how “the introduction of the most enlightened institutions and laws into the western states, at the earliest possible stage, keeps the minds of men in one track, and trains the whole population to the same habits and manners as prevail among the oldest members of the confederacy. It is the most striking instance I am aware of, of the immense control which the political institutions may be made to have upon the social organization.” Considerations Upon the Nature and Tendency of Free Institutions (Cincinnati: H. W. Derby & Co., 1848)Google Scholar, 486.

82. For a recent survey, see Cochrane, Peter, Colonial Ambition: Foundations of Australian Democracy (Carlton, Victoria: Melbourne University Press, 2006).Google Scholar

83. Dunmore Lang, John, Freedom and Independence for the Golden Lands of Australia (Sydney: n.p., 1857)Google Scholar, 339, 349. A searching biography that will situate Lang and his fellow Australian activists in transnational contexts is badly needed.

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