<<

. 14
( 29 .)



>>

than other purchasers.™32 ˜Graduation™ was more ¬‚exible and refers to
the graduation of the price of land offered for sale in public auctions de-
pending on its quality, and so forth. Jeffersonians like Benton hoped that
graduation would make it easier for settlers to acquire cheaper cultivable
land, below the ¬xed government price at which land sales had hitherto
operated.
Homesteading was introduced rather later, in the 1862 Homestead
Act. Unlike the other two policies, which merely favourably altered the
position of the settlers within the general framework of public auctions
for land, homesteading introduced the principle of free land in the West.
The act offered up 160 acres of public land free to any who would settle
on it and improve it for at least ¬ve years, a policy that was subsequently
applied beyond the American continent itself, although with less success:
for example, in the 1903 Philippine Public Land Law.33 In very general
terms, the development of policy through the nineteenth century revealed
a steady movement in the direction of a free land system, with rights in-
creasingly based on the occupation and improvement of land, and with
such rights increasingly being codi¬ed and institutionalized through the
principles of pre-emption and, above all, homesteading. From an inter-
national perspective, it is especially signi¬cant that the Americans not
only sought to apply this principle to the western territories that they had
acquired through purchase or annexation, but even to foreign countries
such as the Philippines, where they had gained a political role through
their defeat of European (Spanish) imperialists. As Stephen Douglas,
senator from Illinois, remarked in 1852: Americans had ˜a mission to
31 Paul Wallace Gates, The Jeffersonian Dream: Studies in the History of American Land Policy
and Development (Albuquerque: University of New Mexico Press, 1996), p. 108.
32 Cited in Hibbard, Public Land Policies, p. 151.
33 Karl Pelzer, Pioneer Settlement in the Asiatic Tropics: Studies in Land Utilization and
Agricultural Colonization in Southeastern Asia (New York: American Geographical
Society, 1945), p. 106.
Colonialism, imperialism, international politics 73

perform . . . of progress in the arts and sciences “ in the science of politics
and government “ in the development and advancement of human rights
throughout the world™.34
The political form assumed by American westward expansion is equally
interesting from the point of view of the principles I have earlier identi-
¬ed in the context of colonial settlement. The central principle of the
Northwest Ordinance in this regard was that ˜the goal of all territorial
acquisition eventually was to be Statehood™.35 In essence, this was an egal-
itarian rejection of the European practice of colonialism: Congress was to
assume responsibility for and authority over the territories; not to exploit
the territory as a colony but to oversee the process of state-formation, de-
termining the moment at which the territory could be accepted into the
Union as an equal state. This plan had three main elements: the estab-
lishment of a government in the territories, prior to the latter assuming
control over their own affairs; the mechanism for creating new states; and
the provisions for internal governance of those new states.
The establishment of territorial government essentially involved the
Federal appointment of governors who would have complete responsi-
bility for the territory. The creation of new states was envisaged to fol-
low a very straightforward formula. According to Article 5 of the 1787
Ordinance: ˜whenever any of the said States shall have sixty thousand
free inhabitants therein, such State shall be admitted, by its delegates,
into the Congress of the United States, on an equal footing with the orig-
inal States, in all respects whatsoever™.36 Jefferson had intended this to be
the culmination of a steady progression of forms of constitutional gov-
ernment, from a ¬rst temporary constitution made by an assembly of all
settlers, through a permanent constitution devised when the territory™s
population reached 20,000.37 One cannot but be struck by the simplicity
of this cumulative population requirement, compared with the require-
ments of sovereign statehood in orthodox legal doctrines on recognition,
such as an organized bureaucracy, capacity for control of territory, self-
defence and so on. Of course, this was largely because, thanks to the
broader division of sovereignty with the Federal government, the new
states would not be required to undertake such activities anyway.
34 Robert W. Johannsen, ˜The Meaning of Manifest Destiny™, in Sam W. Haynes and
Christopher Morris (eds.), Manifest Destiny and Empire: American Antebellum Expansion
(College Station: Texas A&M University Press, 1997), p. 16.
35 Arnold H. Leibowitz, De¬ning Status: A Comprehensive Analysis of United States Territorial
Relations (London: Martinus Nijhoff, 1989), p. 6.
36 Thomas Donaldson, The Public Domain: Its History, with Statistics (New York: Johnson
Reprint Corporation, 1970), p. 156.
37 Thomas Jefferson, Papers of Thomas Jefferson (Princeton University Press, 1950), vol. VI,
p. 614.
74 Beyond the anarchical society

However, although the requirements for quali¬cation as a state were
very low by the standards of European positive international law, the
Northwest Ordinance was much more intrusive with regard to the inter-
nal constitution of the new states than any orthodox international lawyer
would have dreamt. In the ¬rst place, the right of individual private appro-
priation of the public lands was guaranteed. In spite of their supposedly
equal and independent status, the new states were not allowed to ˜inter-
fere with the primary disposal of the soil by the United States in Congress
assembled™.38 In other words, the territories were allowed to devise even
a permanent constitution for themselves without being able to make any
prescriptions whatsoever concerning the system of tenure on their pub-
lic lands (which was by far the largest part of their territory). It would
be hard to think of a more gross violation of the indivisible and territo-
rial principle of state sovereignty that is conventionally supposed to rest
at the heart of modern international political and legal order. In addi-
tion, the inhabitants of the new states were at liberty to devise their own
Constitution. However, the proviso was added that the inhabitants had to
be protected by habeas corpus, trial by jury, common law procedure, pro-
portionate political representation, no arbitrary deprivation of liberty or
property (all Article 2); that there be no slavery (Article 6); and that their
adopted State Constitution be republican (Article 5).39 In other words,
the states formed by the people moving into the western territories were
permitted to develop any constitution they liked, provided that it was
republican and respected fundamental human rights. Furthermore, the
new states founded in the western territories would automatically become
equal members of the American states-union, and would consequently
have to accept the broader division of sovereignty between the individual
states and the Federal government: for example, the new states™ relations
with foreign powers would be managed by the Federal government of the
United States.
The initial assertion of the authority of the Federal government in the
western territories aroused considerable ire. In the Northwest Ordinance,
Congress at ¬rst assumed absolute political authority over the western ter-
ritories, through appointed governors and judges, as a temporary mea-
sure intended to lead to the eventual incorporation of the states as equal
members of the Union on satisfying the population requirement. The
extensive, even dictatorial, gubernatorial authority permitted by this sys-
tem of territorial government was the object of much anger among settlers
in the west. Far from being grateful for the relatively minor population
requirements laid on them before being granted statehood (minor, that
38 39
Ibid. Donaldson, Public Domain, pp. 155“6.
Colonialism, imperialism, international politics 75

is, compared with colonies under European domination), the settlers
were furious at what they regarded as a patronizing infringement of their
already existing rights to self-government.40 The national electoral suc-
cess of the Jeffersonian democratic-republicans in 1801 combined with a
strong movement in the Northwest Territory for statehood. This aspira-
tion was bound up with republican sentiment, since the governor formed
the target of popular criticism, and the territorial government attracted
hostility for being, as Michael Baldwin claimed in 1802, ˜aristocratic in its
principles, and oppressive and partial in its administration™.41 The move-
ment culminated in the meeting of a Convention in November 1802 to
draw up a constitution for the proposed new state of Ohio, which effec-
tively turned things on their heads. The abhorred system of government
through federally appointed governors and of¬cials was scaled down, and
a properly republican and democratic constitution was established in line
with Jeffersonian thinking.42 Congress accepted Ohio as a state under
this constitution in 1803.
For our purposes, it is especially interesting to note the location of
sovereignty in this new state: it was neither as clear-cut nor as taken-for-
granted a question as one might think. The constitution drawn up by the
1802 Convention had asserted the local sovereignty of the inhabitants
of the territory. It was, in this sense, a clear statement of the demo-
cratic strand of Jeffersonianism, presented in opposition to the Federalist
assertion of the national prerogative. Subsequently, however, this demo-
cratic assertion of popular sovereignty was tracked back somewhat, both
through a stronger assertion of the role of the judiciary and through an
increasing reliance on schemes for internal improvements funded by the
Federal government.43 Gradually, in other words, the more republican
side of the Jeffersonians and the nationalist ideas of the Federalists began
to re-assert themselves, partly through an increasing division of sovereign
powers between institutions within the state, partly through an insistence
on the principle of popular sovereignty, but also through a recognition
that some functions were best performed by the Federal government, and
that these areas of sovereign authority should consequently be alienated
to the Federal level. For example, ˜the public school and canal movements
committed the power of the state government to guiding Ohio and its cit-
izens into responsible roles as parts of a national system. After the 1820s,
few could deny for long that the residents of Ohio were independent only
40 See, for example, Nicole Etcheson, The Emerging Midwest: Upland Southerners and the
Political Culture of the Old Northwest (Bloomington: Indiana University Press, 1992), p. 20.
41 Cited in Andrew Cayton, The Frontier Republic: Ideology and Politics in the Ohio Country,
1780“1825 (Kent State University Press, 1986), p. 69.
42 43 See ibid., chs. 7 and 9.
Ibid., pp. 77“8.
76 Beyond the anarchical society

to the extent that their interdependence with the rest of the American
and European worlds allowed them to be.™44
In its early stages, then, the establishment of states in the western terri-
tories illustrates the classic constitutional features that seem to character-
ize the logic of colonial settlement more generally, in the sense that the
marks of sovereignty came to be divided between different institutions
at different levels. In the speci¬c case of Ohio, the division was both de
jure and de facto. The state Constitution located sovereignty in the people
and their elected representatives; however, through the US Constitution
foreign relations were all conducted through the US Congress, and the
recognition of the territories as states still required an act of the Federal
government.45 De facto, things were even messier, as the need for orderly
administration and for Federal assistance in certain areas (notably edu-
cation and ˜internal improvements™) made further quali¬cations to local
popular sovereignty inevitable. Sovereignty, as in the pre-revolutionary
colonial system, remained divided; now, however, that division provided
a powerful rationale for the American practice of offering prompt and
equal recognition to the territories that came under the control, unlike the
European imperial powers in the East Indies, who denied that recognition
to their dominions for as long as possible.

European imperialism in the East Indies
Compared with what they were doing in North America, European ac-
tivities in the East Indies focused relatively less on colonial settlement
and relatively more on the imperial administration of indigenous peo-
ples. The principal reasons for this difference do not lie in the different
domestic politics of the European states themselves so much as in the
situations they encountered: there were fewer ˜vacant™ lands available for
the planting of colonies and, in any case, Europeans believed that they
could make more pro¬ts by inserting themselves into already existing sys-
tems of trade and taxation. Despite this important difference, however,
in very general terms there were some striking similarities in the way
that international relationships evolved in the East Indies compared with
North America. The division of sovereignty was again integral to the
development of European public authority in the region, although the
practice typically involved the gradual acquisition of prerogatives from
indigenous rulers rather than the decentralized system of colonial ad-
ministration that I described in the previous section; nevertheless, with
that proviso in mind, the structures of governance that developed were
44 45
Ibid., p. 150. Ibid., p. 80.
Colonialism, imperialism, international politics 77

remarkably alike. In the East Indies, also, the establishment of individ-
uals™ property rights was a prominent feature of European activity, with
considerable efforts made to endow indigenous peoples with the kinds of
property rights that Europeans felt they ought to have, on a similar model
to the way in which colonial settlers had been granted their property rights
in North America.
It is easy to overlook these aspects of European imperialism in the
East Indies because the conventional picture tends to highlight the over-
whelming military and commercial dominance of European powers, their
superior attitude towards the indigenous peoples under their rule, and
the economic exploitation that was one of the central purposes of impe-
rial administration. Certainly, one should not down-play these dimen-
sions of modern imperialism, but it is nevertheless important to take
seriously the normative and legal environment within which imperial
forms of governance were constructed and maintained in the East In-
dies. It is signi¬cant, for example, that even at the apogee of British
imperialism in India roughly two-¬fths of the territory and two-ninths
of the population of present-day India were not directly under British
rule, but were organized into over 600 ˜Princely™ or ˜Native States™.46
The of¬cial line was that these states were ˜semi-sovereign™, a concept
borrowed from classical theories of the law of nations that was explic-
itly intended to re¬‚ect the principle of divisible sovereignty. Indeed, le-
gal experts with an interest in British imperialism like Henry Sumner
Maine frankly argued that ˜[s]overeignty is a term which, in interna-
tional law, indicates a well-ascertained assemblage of separate powers or
privileges . . . there is not, nor has there ever been, anything in interna-
tional law to prevent some of those rights being lodged with one pos-
sessor and some with another. Sovereignty has always been regarded as
divisible.™47
My main purpose in this section is to describe how this practice of
dividing sovereignty between European governments, imperial adminis-
trators and indigenous rulers developed; in the course of that discussion,
I will also explain some of the ways in which Europeans used their public
authority to reorganize local property systems. I will begin in the early
seventeenth century, when the Dutch were struggling with the Portuguese
for control over the spice trade. We have already touched on some aspects
of this con¬‚ict when we looked at Hugo Grotius™s defence of the capture
46 S.R. Ashton, British Policy Towards the Princely States, 1905“1939 (London: Curzon Press,
1982).
47 Henry Sumner Maine, Minute from 22 March, 1864, printed as Document 65 in Adrian
Sever, Documents and Speeches on the Indian Princely States, 2 vols. (Delhi: B.R. Publishing
Corporation, 1985), p. 251, and see also pp. 25“7.
78 Beyond the anarchical society

of a Portuguese ship in De Jure Praedae, but now I want to look more
broadly at how the Dutch regarded the sovereignty of indigenous rulers,
and ask precisely how they manipulated treaty agreements and contracts
in order to establish control over strategically important territories and to
create trading monopolies. The French revolutionary wars considerably
disrupted these arrangements, and although the Dutch eventually recov-
ered many of their possessions, notably Indonesia, they did so thanks to
the British, who now established themselves as the leading military power
in India and the East Indies in general. I will conclude this section, then,
by asking how the Dutch and British consolidated their imperial adminis-
trations in Indonesia and India, paying particular attention to their treat-
ment of indigenous rulers. The latter were usually permitted to retain
some prerogatives of sovereignty, but were now made subject to doc-
trines like the one that the British eventually formalized, with deliberate
vagueness, under the heading of ˜paramountcy™.
A crucial point to notice here is that the goals of imperial administra-

<<

. 14
( 29 .)



>>