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arrangement of individual land-holding by New England settlers was
allodial in the sense that they owned their property absolutely, with
no associated obligations either to the king or even to the corporate
agencies.14 Grants were usually small and fairly homogeneous, differ-
ing mainly with respect to the size of families, leading to a society com-
posed of townships rather like the Netherlands farming communities of
˜free and equal agriculturalists™, with allodial and similarly sized land-
holdings.15 It was, in effect, a system of ˜owner-occupiers™, with individual
settlers and their families coming into direct and exclusive possession of
land that they could occupy and use: very close to the Grotian theory of
appropriation.
The situation in the proprietorial colonies was slightly different. Here,
a vast tract of land was granted in the ¬rst instance to a single individual
(the proprietor), who was then at liberty to establish more or less what-
ever scheme he desired of granting land to actual settlers. Some large-
scale English proprietors tried to use their original grants to establish
feudal land systems within their domains; this was the case, for example,
in Maryland and the Carolinas (where Locke™s main colonial involve-
ment was). However, it was quickly discovered that it was as dif¬cult to
make feudalism work in this new context as it had been in the medieval
Netherlands. This was only partly because settlers were not initially at-
tracted by offers of land bound by feudal obligations to a proprietor, but
also because the availability of free land in the colony and non-feudal land
systems in other colonies made it dif¬cult to sustain feudal tenures in the
face of these rival attractions: settlers, including European ˜indentured
labourers™, could and did go elsewhere, which goes some of the way to-
wards explaining the attractiveness of importing slave labour from Africa
13 Alan Everitt, Continuity and Colonization: The Evolution of Kentish Settlement (Leicester
University Press, 1986).
14 Harris, Origins of the Land Tenure System, p. 116.
15 Kenneth Lockridge, Settlement and Unsettlement in Early America: The Crisis of Political
Legitimacy before the Revolution (Cambridge University Press, 1981), p. 20.
Colonialism, imperialism, international politics 67

as an option for the colonial planters. Sometimes rival tenurial systems
even existed within the same colony, as in the Carolinas where around
two-¬fths of the land was held as feudal estates and three-¬fths owned by
settlers under freehold.16 In general, the proprietorial English colonies il-
lustrate a process by which the land was granted and gradually re-granted
to individuals, all the time under free and easy terms. In most cases, own-
ership rights eventually came to be held by the actual occupier of the
land, with hardly any reservations. A broadly similar pattern of colonial
settlement unfolded under the auspices of another major colonial state,
the Dutch, where patroons attempted to create the same kinds of feudal
estates, and met with the same problems.17
Politically and judicially, the New England townships were again in a
rather similar position to farming communities in the reclamation dis-
tricts of the Netherlands, characterized by weak seigneurial control and
a high degree of local self-government with widespread popular partic-
ipation, often for reasons of distance, and also because of the require-
ments of maintaining the settlement through crises of various sorts.18
Of course, this led to considerable confusion about the ultimate location
of sovereignty. The formal title of sovereignty was held by the monarch,
but the various prerogatives that collectively constituted political author-
ity “ the powers to tax, to organize relations between the colony and the
Indians or with other foreign powers, to organize the military defence of
the colony and to make judicial decisions “ were distributed between the
Crown, the proprietary agencies and the settlers™ local institutions. This
situation was exacerbated yet further by the formation of a settlement
agency actually based in the colony, the Massachusetts Bay Company,
which meant that a local, American-based agency possessed all the mu-
nicipal rights and legislative authority endowed by its Charter.19 The
formal sovereign title was still held by the Crown; but the crucial le-
gal and political question of who possessed which marks of sovereignty
was much more convoluted. This confused situation was put to use in
the revolt against Governor Andros: in a well-known 1691 pamphlet,
The Revolution in New England Justi¬ed, the rights in property through
occupation and the marks of sovereignty granted under the Charter were
16 Harris, Origins of the Land Tenure System, p. 135.
17 S.G. Nissenson, The Patroon™s Domain (New York: Columbia University Press, 1937),
and Oliver Rink, Holland on the Hudson: An Economic and Social History of Dutch New York
(Ithaca: Cornell University Press, 1986). Dutch settlement was still relatively small scale
because, like the French, they were more interested in developing the fur trade than
establishing plantations: see Van Cleaf Bachman, Peltries or Plantations: The Economic
Policies of the Dutch West India Company in New Netherland, 1623“1639 (Baltimore: Johns
Hopkins University Press, 1969).
18 Harris, Origins of the Land Tenure System, p. 285.
19 Ibid., p. 106.
68 Beyond the anarchical society

both used to justify resistance, much as they were later used in the more
decisive revolution of the eighteenth century.20
The proprietary colonies and the estates held by the Dutch patroons
generally exhibited more feudal, or, perhaps more accurately, ˜mock-
feudal™, political and judicial forms. In these cases, an unusually wide
range of sovereign powers were delegated by the Crown to the propri-
etors, or by the West India Company to the patroon. Baltimore, for in-
stance, was ˜given all the rights of government™ and so, with a few more
reservations (including rights of taxation), was Penn.21 The patroons were
also, in a manner deliberately reminiscent of feudal institutions, granted
full powers of jurisdiction in their colonies.22 The proprietors and patroons
were not formally sovereigns; they held their grants as ¬efs. But, consistent
with that status, they were explicitly granted several marks of sovereignty,
and indeed often received far more of those than would have been usual
under most normal feudal arrangements on the European continent.
In itself, this obviously treated sovereignty as divisible. Furthermore,
attempts by proprietors and patroons to exercise these sovereign powers
to the detriment of the settlers met much the same fate as attempts to
settle the land under feudal tenures. It simply led to the loss of tenants
to more congenial colonies. The result in the patroons™ domains of New
Netherland, was not so much the construction of local institutions of
governance, but a less formal system similar to the fairly participatory
systems of the Netherlands.23
I raise all these details to illustrate a simple, but very important, point:
the settlement of North America is often taken to be one of the principal
developments of the modern era; indeed, it is customarily seen as the great
demarcation between the medieval and modern worlds. But what we see
if we look closely at how colonial settlement was actually carried out is
an activity that is at odds with the conventional account of the de¬ning
characteristics of how the modern form of international order emerged.
We do not see international rights and duties being removed from indi-
viduals and vested exclusively in the state; states were becoming more
important, that should not be denied, but at the same time the private
rights of individuals in the law of nations were not simply being main-
tained, but were actively deepened and extended through the increasingly
normal practice of granting tenures under free and easy terms. Moreover,
20 In Peter Force (ed.), Tracts and Other Papers, Relating Principally to the Origin, Settlement
and Progress of the Colonies in North America, 4 vols. (Washington: Peter Force, 1836“46),
vol. IV, especially pp. 15 and 18.
21 Harris, Origins of the Land Tenure System, pp. 120“4.
22 Nissenson, Patroon™s Domain, p. 24.
23 Rink, Holland on the Hudson, p. 228, and see also Nissenson, Patroon™s Domain,
pp. 153“65.
Colonialism, imperialism, international politics 69

we do not witness the consolidation of public authority in the hands of the
absolute holders of territorial sovereignty, each possessing his or her own
carefully de¬ned zone of domestic jurisdiction. On the contrary, we see
the profusion of divided sovereignty, re-cast in the form of decentralized
systems of colonial governance. To the extent that we can think of the col-
onization of North America as an international practice, and one would
have to have a peculiarly narrow conception of the ˜international™ to deny
it that status, it is very clear that this re¬‚ects a completely different kind
of international order from that which was simultaneously developing on
the European continent.24
The revolution wrought substantial changes in how America was per-
ceived by theorists of international relations. Nineteenth-century inter-
national lawyers did talk about the post-revolutionary American Union as
an example of the existence of semi-sovereign states in the modern world,
but they tended to deny it any real signi¬cance because all of the inter-
national personality, the ˜external™ sovereignty, was vested in the Federal
government, which was to all intents and purposes an ordinarily equal
and independent state like European ones.25 Complications occasion-
ally intruded into this picture, for example over the question of whether
the Confederate States should be internationally recognized during the
Civil War, but on the whole America more or less drops off the main-
stream picture of international relations after the revolution. What this
neglects, however, is one of the most distinctively international activities
of the post-revolutionary United States: namely, its continuing tendency
towards expansion, especially by purchasing or annexing territories in
the West, often after violent con¬‚icts (with Mexico, for example) or pro-
longed diplomatic engagements with European powers.26 The Americans
also developed a practice of transforming the western territories into new
states, i.e., members of the Union, according to a unique procedure that
was explicitly designed so as to be different from the imperialism estab-
lished by Europeans in Asia and Africa, but which nevertheless could
be viewed as a particular form of recognition of semi-sovereignty. The
post-revolutionary expansion was, however, still governed by certain basic
principles that were shared with nineteenth-century European interna-
tional lawyers and colonial administrators, particularly the belief that the
world outside existing European settlements was uncivilized and needed
24 For a good discussion of this point, although one that fails to analyse divisible sovereignty
and individuals™ property in the colonial context, see Daniel Deudney, ˜The Philadel-
phian System: Sovereignty, Arms Control, and Balance of Power in the American States-
Union™, International Organization, 49 (1995), 191“228.
25 I will return to this point in chapter 4.
26 An interesting survey in this respect is David M. Pletcher, The Diplomacy of Annexation:
Texas, Oregon and the Mexican War (Columbia: University of Missouri Press, 1973).
70 Beyond the anarchical society

to be transformed through the establishment of permanent, organized
populations; the development of commercial and economic activity; the
provision of good government; and the guarantee of the fundamental
rights of the individuals living there.27 Having described the main themes
involved in the practice of pre-revolutionary colonial settlement in North
America, what I want to do now is to look at their proximity to the subse-
quent practice of post-revolutionary westward expansion, which involved
the conversion of even greater swathes of territory into states.
In part, the expansive tendencies of the American states-union related
to the widely held belief that republican virtue would be best safeguarded
in the context of a democratic political system by ensuring the disper-
sal of property ownership throughout the population. In nineteenth-
century Britain, they used property ownership to determine who should
be given the franchise; in America, they gave everyone the vote, but then
decided that everyone ought to own property.28 One of the foremost
spokesmen for this point of view was Thomas Hart Benton, the senator
from Missouri, who eloquently summarized the Jeffersonian position on
western settlement in the following way:
Tenantry is unfavourable to freedom . . . The freeholder, on the contrary, is the
natural supporter of a free government, and it should be the policy of republics to
multiply their freeholders as it is the policy of monarchies to multiply tenants. We
are a republic, and we wish to continue so: then multiply the class of freeholders;
pass the public lands cheaply and easily into the hands of the People; sell for a
reasonable price to those who are able to pay; and give without price to those
who are not.29

One could hardly wish for a better statement of what differentiated the
republican states-union of America from the ˜predominant monarchies™
in the European states-system, to which (as we saw in chapter 1) A.H.L.
Heeren and the English school attached such importance.
Jefferson himself had been closely involved in two key developments
with regard to the settlement of the western territories and the spread
of American republican civilization. As president, he conducted the
Louisiana Purchase in 1803, dramatically expanding the size of the public
27 This belief is a prominent theme in the classic thesis on American expansion presented
in Frederick Jackson Turner, The Frontier in American History (Tucson: University of
Arizona Press, 1986), but for a more recent, and extremely good, discussion of the con-
cept of civilization in the context of American westward expansion, see Harold Hyman,
American Singularity: The 1787 Northwest Ordinance, the 1862 Homestead and Morrill Acts,
and the 1944 G.I. Bill (Athens: University of Georgia Press, 1986).
28 For a less facetious interpretation, see Joyce Appelby, Liberalism and Republicanism in the
Historical Imagination (Cambridge, MA: Harvard University Press, 1992).
29 Cited in Benjamin Horace Hibbard, A History of the Public Land Policies (New York: Peter
Smith, 1965), pp. 142“3.
Colonialism, imperialism, international politics 71

domain of the United States; earlier, he had contributed extensively to the
Land Ordinances of 1785 and 1787, which played a vital role in determin-
ing the tenurial and political forms of westward expansion, especially the
1787 Northwest Ordinance. The Louisiana Purchase was part of a series
of land grants or acquisitions that endowed the United States Congress
with an extraordinary range of powers in the nineteenth century. After
the revolution, the states™ claims to the western territories (which had
usually, and often vaguely, been included in colonial land grants to pro-
prietors or agencies) were ceded to the Federal government, creating a
˜public domain™ which was enlarged by a series of acquisitions: Louisiana
from the French, Florida from Spain in 1819 and the Oregon purchase
from Britain in 1846.30 The distinctive feature of this public domain was
that the Federal government of the United States did not only hold the
political rights granted it by the Constitution; it actually owned the land
itself.
Given the ¬nancial dif¬culties of the period after the revolutionary
wars, there was a great deal of sympathy for Alexander Hamilton™s ¬s-
cally prudent point of view that the opportunity to sell off the western
territories was too good to miss, especially since it seemed fair to many
easterners that the settlers in the West would enjoy the bene¬ts of the
revolution and deserved to pay some of its costs. The chief dissenters
were Jefferson and his supporters, who believed that the lands should
be freely distributed to all settlers. Although they initially lost the bat-
tle over the issue of sales, the Jeffersonians were still able to ensure in
the 1787 Ordinance that any sales by the government to settlers would
be on the least encumbered tenures possible: ˜fee-simple™, rather than
any feudal kind of ˜fee-tail™. It is not surprising, given that the revolution
had in part been a defence of the allodial nature of Americans™ property
rights, that this became such a central feature of Jeffersonian republican-
ism and western settlement. However, it is worth bearing in mind that
the Northwest Ordinance was the instrument by which it was effectively
guaranteed that feudal tenures would have no place at all in the rest of
North America, that individual settlers in the western territories would
have complete rights over the land they bought from the government,
and that the long-standing colonial principle of appropriation would be
extended to the yet un-settled parts of the continent.
Of course, the actual practitioners of frontier settlement hardly corre-
sponded to the Jeffersonian ideal of independent yeoman farmer-citizens:
speculation was rife. This problem led to a series of policies designed to
improve the position of the ˜genuine™ settler, the ultimate goal being ˜to
30 Hibbard, Public Land Policies, pp. 7“20.
72 Beyond the anarchical society

make the public-land system function in a democratic way by assuring
the small man the right to acquire a piece of the national domain™.31
This effort was carried on across three issues: pre-emption, graduation
and homesteading. Pre-emption, which meant giving bona ¬de settlers
special rights to purchase up to 160 acres of land at a ¬xed price, began
to be introduced from the 1830s, culminating in the 1841 Pre-emption
Act. Its main purpose was to ensure the rights of settlers and squatters
against speculation, following a rationale set out by the Public Lands
Committee in 1828: ˜It is right and proper that the ¬rst settlers, who
have made roads and bridges over the public lands at their own expense
and with great labour and toil, should be allowed a privilege greater

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