Gautham Rao Assistant Professor of History, American University nyu legal History Colloquium 10/2014

1 On statecraft in Anglo-American early modernity, see Steve Pincus, 1688: The First Modern Revolution (New Haven: Yale University Press, 2009); John Brewer, Sinews of Power: War, Money, and the English State, 1688-1783 (Cambridge: Harvard University Press, 1988); E.P. Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975); Bernard Bailyn, The Origin of American Politics (New York: Knopf, 1968); Michael J. Braddick, The Nerves of State: Taxation and the Financing of the English State, 1558-1714 (New York: St. Martin’s Press, 1996).

2 On the problem of the federal government in the era of the American Revolution, see Alison L. LaCroix, The Ideological Origins of American Federalism (Cambridge: Harvard University Press, 2010); Max M. Edling, Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (New York: Oxford University Press, 2003); Saul Cornell, The Other Founders: Anti-Federalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill: University of North Carolina Press, 1999); Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969); Bernard Bailyn, The

Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967); Peter S. Onuf, The Origins of the Federal Republic: Jurisdictional Controversies in the United States, 1775-1787 (Philadelphia: University of Pennsylvania Press, 1983).

3 The best treatment of the customs service in the early republic is Frederick Arthur Baldwin Dalzell, “Taxation With Representation: Federal Revenue in the Early Republic,” Ph.D. Dissertation, Harvard University, 1993. Dalzell provides a fine-grained study customs policy and implementation from 1789 to 1800. He concludes that customs officials “accommodated” merchants in order to secure revenue. See also, Dalzell, “Providence and the Golden Egg: Establishing the Federal Government in Providence, Rhode Island,” New England Quarterly, vol. 65, no. 3 (September, 1992), 355-388. Also excellent is Joshua Mitchell Smith’s Borderland Smuggling: Patriots, Loyalists and Illicit Trade in the Northeast, 1783-1820 (Gainesville, Fla.: University of Florida Press, 2006), and the dissertation it is based upon, “The Rogues of ‘Quoddy: Smuggling in the Maine-New Brunswick Borderlands, 1783-1820,” Ph.D. Dissertation, University of Maine, 2003). Older works are useful for details of legislative history and doctrinal development. See, e.g., Laurence F. Schmeckebeier, The Customs Service: Its History, Activities and Organization (Baltimore: Johns Hopkins University Press, 1924); Carl E. Prince and Mollie Keller, The U.S. Customs Service: A Bicentennial History (Washington, D.C.: Department of the Treasury, U.S. Customs Service, 1989); Don Whitehead, Borderguard: The Story of the United States Customs Service (New York: McGraw-Hill Companies, 1963); National Society of the Colonial Dames of America, Three Centuries of Custom Houses (National Society of the Colonial Dames of America, 1972).

4 These merchants, like those who helped integrate the British Empire in the Atlantic marketplace, “coordinated people, materials, and capital across market sectors and among geographically dispersed areas.” David Hancock, Citizens of the World: London Merchants and the Integration of the British Atlantic Community (New York: Cambridge University Press, 1995), 16.

5 Marcus Rediker and Peter Linebaugh, The Many Headed-Hydra: Sailors, Slaves, Commoners, and the Hidden History of the Revolutionary Atlantic (Boston: Beacon Press, 2000), 144. Rediker and Linebaugh define “hydrarchy” to mean “the organization of the maritime state from above, and the self-organization of sailors from below.” Though Linebaugh and Rediker use the term in order to identify a class struggle between maritime states and the Atlantic working class, I seek to understand hydrarchy a bit more expansively. The organization of the “maritime state” necessitated “self-organization…from below” of groups other than sailors, including those with considerably more social distinction and authority, such as merchant capitalists.

6 Negotiated authority, in which two or more groups compete and collaborate to set the terms and limits of authority, was a main feature of imperial governance in the North American Colonies. See, Jack P. Greene, “Transatlantic Colonization and the Redefinition of Empire in the Early Modern Era: The British-American Experience,” in Negotiated Empires: Centers and Peripheries in the Americas, 1500-1820, ed. Christine Daniels and Michael V. Kennedy (New York: Routledge, 2002), 267-282; Elizabeth Mancke, “Negotiating an Empire: Britain and Its Oversea Peripheries, c. 1550-1780,” in ibid., 32-74; Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill: University of North Carolina Press, 2005); Eric Hinderaker, Elusive Empires: Constructing Colonialism in the Ohio Valley, 1673-1800 (New York: Cambridge University Press, 1999). Negotiated authority was also the product of interactions between English and European colonists and Indian civilizations. See, for instance, Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650-1815 (New York: Cambridge University Press, 1991).

7 Quentin Skinner, “The State,” in Political Innovation and Conceptual Change, ed. Terrence Ball, James Farr, and Russell L. Hanson (Cambridge, 1989), 90, 91, 122-3. 126.

8 E.J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (New York: Cambridge University Press, 1990), 23-45. Charles Davenant, An Essay Upon Ways and Means (1695), in Charles Davenant, The Political and Commercial Works Of that Celebrated Writer Charles Davenant, LL.D. (1695-1712; Farnborough, England: Gregg Press Limited, 1967), 1:136.

9 On the origins of the fiscal-military state, see John Brewer, Sinews of Power: War, Money, and the English State, 1688-1783 (Cambridge: Harvard University Press, 1988); Pincus, 1688, esp. 305-436; Christopher Storrs, Fiscal-Military State in Eighteenth-Century Europe: Essays in Honor of P.G.M. Dickson (Burlington, Vermont: Ashgate, 2009); Margaret Levi, Of Rule and Revenue (Berkeley, 1989); Charles Tilly, Of Coercion, Capital, and European States, A.D. 990-1992 (New York, 1995); Fernand Braudel, Civilization and Capitalism, 15^th-18^th Century: The Wheels of Commerce, tr. Sian Reynolds (Berkeley, 1992); Patrick K. O’Brien and Philip A. Hunt, “England, 1485-1815,” in The Rise of the Fiscal State in Europe, 1200-1815 (New York, 1999), 53-100.

10 On the American “fiscal-military” revolution, see Edling, A Revolution in Favor of Government. The founding generation’s anxiety over establishing legitimacy at home and abroad is discussed by Mlada Bukovansky, Legitimacy and Power Politics: the American and French Revolutions in International Political Culture (Princeton: Princeton University Press, 2002); David M. Waldstreicher, In the Midst of Perpetual Fetes: The Making of American Nationalism, 1776-1820 (Chapel Hill: University of North Carolina Press, 1997); Stanley Elkins and Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800 (New York: Oxford University Press, 1993), 34-128; James Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis (New Haven: Yale University Press, 1995); Steven Watts, The Republic Reborn: War and the Making of Liberal America, 1790-1820 (Baltimore: Johns Hopkins University Press, 1989); Morton Borden, Parties and Politics in the Early Republic, 1789-1815 (New York: Taylor & Francis, 1968).

11 Customhouses also played a crucial informational role in early modern state formation. Indeed, somewhat ironically, authorship of The Wealth of Nations was Adam Smith’s bona fides for an appointment to the Board of Customs. Nicholas Phillipson, Adam Smith: An Enlightened Life (New Haven: Yale University Press, 2010), 254.

12 In his magisterial 1992 study of the English revenue system, John Brewer lamented historians’ general disinterest in the “remarkable proliferation of accounts, memoranda and correspondence” that accompanied the rise of the early modern state. Brewer, Sinews of Power, 69. Since then, however, historians of empire have produced excellent, nuanced treatments of administrative officialdom. See Konstantin Dierks, In My Power: Letter Writing and Communications in Early America (Philadelphia: University of Pennsylvania Press, 2009); Kenneth J. Banks, Chasing Empire Across the Sea: Communications and the State in the French Atlantic, 1713-1763 (Montreal: McGill-Queens University Press, 2006); Eve Tavor Bannet, Empire of Letters: Letter Manuals and Transatlantic Correspondence, 1688-1820 (New York: Cambridge University Press, 2005); 236-273; Richard J. Ross, “Legal Communications and Imperial Governance: British North America and Spanish America Compared,” in The Cambridge History of Law in America, vol. 1 (New York: Cambridge University Press, 2008), 104-143.

13 Stephen Skowronek’s offers a brief but influential treatment of the early American state in his influential Building a New American State (1982). Skowronek concedes that, though the early American state lacked “a sense of a state,” it was nonetheless “essential to social order and social development in nineteenth-century America.” Writes Skowronek, “it fought wars, expropriated Indians, secured new territories, carried on relations with other states, and aided economic development.” Strangely, however, Skowronek devotes little time to explaining how this state, which “was not a directive force in social affairs,” managed to accomplish these tasks. Instead, he focuses on the idea of a “state of courts and parties” that managed the decentralized federalist “system of control” that “was well established by 1850.” In this system, the political party system provided “procedural unity” while the federal judiciary mediated interstate conflicts. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877-1920 (New York: Cambridge University Press, 1982), 19, 24, 27, 26. On the legacy of Building a New American State, see Daniel P. Carpenter, “The Multiple and Material Legacies of Stephen Skowronek,” Social Science History, vol. 27, no. 3 (2003), 465-74. A strong critique of Skowronek is Richard R. John, “Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787-1835,” Studies in American Political Development, vol. 11 (Fall, 1997), 347-380.

14 This argument is made most effectively by Max Edling, A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (New York: Oxford University Press, 2003); Brian Balogh, Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America (New York: Cambridge University Press, 2009); Richard R. John, “Governmental Institutions as Agents of Change”; John, “Farewell to the ‘Party Period’: Political Economy in Nineteenth-Century America,” Journal of Policy History, vol. 16, no. 2 (2004), 117-125.

15 The role of central governmental institutions in the story of American economic development received much attention from the Progressive Commonwealth historians, who argued that the construction of infrastructure and other foundations established the preconditions for economic growth. See, e.g. Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (Cambridge: Harvard University Press, 1946); Oscar Handlin and Mary Flug Handlin, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861 (Cambridge: Harvard University Press, 1969); Carter Goodrich, Government Promotion of American Canals and Railroads, 1800-1888 (New York: Columbia, 1960); Harry N. Scheiber, Ohio Canal Era; A Case Study of Government and the Economy, 1820-1861 (Athens, Ohio: Ohio University Press, 1968); Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789-1837 (New York: Oxford University Press, 1968); Paul Wallace Gates, History of Public Land Law Development; Written for the Public Land Law Review Commission (Washington: Government Printing Office, 1968). More recently, historians of political economy have gone to great lengths to show more direct connections between policy and market change. For a sampling of this literature, see the fine essays in Richard R. John, ed., Ruling Passions: Political Economy in Nineteenth-Century America (University Park, PA: Pennsylvania State University Press, 2006).

16 Alan Taylor, “From Fathers to Friends of the People: Political Personas in the Early Republic,” Journal of the Early Republic, vol. 11, no. 4 (Winter, 1991), 465-491. More generally, on officeholding in the early republic, see Carl E. Prince, Federalists and Origins of the U.S. Civil Service (New York: New York University Press, 1977).

17 Smuggling, and the legal struggle against it, was an important source of capital accumulation, political mobilization, and statecraft in eighteenth and nineteenth-century America. For a good introduction to this literature, see John W. Tyler, Smugglers & Patriots: Boston Merchants and the Advent of the American Revolution (Boston: Northeastern University Press, 1986); Cathy D. Matson, Merchants & Empire: Trading in Colonial New York (Cambridge: Harvard University Press, 1998); Joshua M. Smith, Borderland Smuggling: Patriots, Loyalists, and Illicit Trade in the Northeast, 1783-1820 (Gainesville: University of Florida Press, 2006); Peter Andreas, Smuggler Nation: How Illicit Trade Made America (New York: Oxford University Press, 2013); Catherine Cangany, Frontier Seaport: Detroit’s Transformation into an Atlantic Economy (Chicago: University of Chicago Press, 2014).

18 On the problem of localism in state formation, see Philip Gorski, The Disciplinary Revolution: Calvinism and the Rise of the State in Early Modern Europe (Chicago: University of Chicago Press, 2003); Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton: Princeton University Press, 1998).

19 Keith Wrightson explores competing, central and local notions of order in his influential essay, "Two Concepts of Order: Justices, Constables and Jurymen in Seventeenth-Century England," in An Ungovernable People: The English and their Law in the Seventeenth and Eighteenth Centuries, ed. John Brewer and John Styles (New Brunswick: Rutgers University Press, 1980), 21-46.

20 On this political economy of the waterfront in the early American republic, see Zabin, Dangerous Economies; Jane Kamensky, The Exchange Artist: A Tale of High-Flying Speculation and America’s First Banking Collapse (New York: Viking, 2008), 179-217; Tamara Plakins Thornton, “Capitalist Aesthetics: Americans Look at the London and Liverpool Docks,” in Capitalism Takes Command, ed. Michael Zakim and Gary D. Kornblith (Chicago: University of Chicago Press, 2012), 169-198; Joanna Cohen, “‘The Right to Purchase is as Free as the Right to Sell’: Defining Consumers as Citizens in the Auction-House Conflicts of the Early Republic,” JER, vol. 30, no. 1 (Spring, 2010), 25-62;. For a fine study of the political significance of the early modern coffeehouse, see Steven C.A. Pincus, “‘Coffee Politicians Does Create’: Coffeehouses and Restoration Political Culture,” Journal of Modern History, vol. 67, no. 4 (Dec., 1995), 807-34. On the revolutionary politics of colonial taverns, see David W. Conroy, In Public Houses: Drink and the Revolution of Authority in Colonial Massachusetts (Chapel Hill: University of North Carolina Press, 1995).

21 More than any other scholar, Jack P. Greene has illustrated the sources of negotiated authority in the British imperial governance of the North American colonies. See, Negotiated Authorities: Essays in Colonial Political and Constitutional History (Charlottesville: University of Virginia Press, 1994, 1-23; Greene, Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 (Athens: University of Georgia Press, 1986); Constitutional Origins of the American Revolution (New York: Cambridge University Press, 2011). See also, Hulsebosch, Constituting Empire; Games, Web of Empire.

22 Hulsebosch, Constituting Empire. See, William J. Novak, The People’s Welfare: Law & Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996); Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730-1870 (Ithaca, NY: Cornell University Press, 1983); Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1997).

23 E.P. Thompson, “The Moral Economy of the English Crowd in the Eighteenth Century,” Past & Present, no. 50 (Feb., 1971), 79.

24 On the role of the mobs in the American Revolution, see Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 (New York: Knopf, 1972); Arthur Meier Schlesinger, The Colonial Merchants and the American Revolution, 1763-1776 (1918; New York: Facsimile Library, 1939); Russell Bourne, Cradle of Violence: How Boston’s Waterfront Mobs Ignited the American Revolution (New York: John Wiley & Sons, 2006); Edmund S. Morgan and Helen M. Morgan, The Stamp Act Crisis: Prologue to Revolution (1953; Chapel Hill: University of North Carolina Press, 1995); Carl M. Bridenbaugh, Cities in Revolt: Urban Life in America, 1743-1776 (New York: Harper, 1995); Paul A. Gilje, Liberty on the Waterfront: American Maritime Culture in the Age of Revolution (Philadelphia: University of Pennsylvania Press, 2004); Gary B. Nash, Urban Crucible: The Northern Seaports and the Origins of the American Revolution (Cambridge: Harvard University Press, 1986).

25 John Joseph Wallis, “ Federal government revenue, by source: 1789–1939.” Table Ea588-593 in Historical Statistics of the United States, Earliest Times to the Present: Millennial Edition, ed. Susan B. Carter et al. (New York: Cambridge University Press, 2006). http://dx.doi.org/10.1017/ISBN- 9780511132971.Ea584-67810.1017/ISBN-9780511132971.Ea584-678; Internet; accessed April 11, 2007.

26 On the comparatively soft footprint of the early federal government, see Balogh, Government Out of Sight; Edling, Revolution in Favor of Government.

27 Daniel Bluestone, “Civic and Aesthetic Reserve: Ammi Burnham Young’s 1850s Federal Customhouse Designs,” Winterthur Portfolio, vol. 25, no. 2/3 (Summer-Autumn, 1990), 131, 133. See also, Nathaniel Hawthorne, The Scarlet Letter: A Romance (London: David Bogue, 1851), 8-9; David M. Henkin, The Postal Age: The Emergence of Mass Communications in Nineteenth-Century America (Chicago: University of Chicago Press, 2006), 67; Antoinette Josephine Lee, Architects to the New Nation: the Rise and Decline of the Supervising Architect’s Office (New York: Oxford University Press, 2000), 11-38. The phrase “sense of the state” is borrowed from Stephen Skowronek, who discovered it in the writings of H.G. Wells. Writes Skowronek: “A ‘sense of the state’ pervades contemporary American politics. It is the sense of an organization of coercive power operating beyond our immediate control and intruding into all aspects of our lives.” “After all,” he concludes, “it is the absence of a sense of the state that has been the great hallmark of American political culture.” This book makes a case for the opposite view with regard to the role of the federal government in the early United States. The “institutional turn” of the political history of nineteenth-century America has already done so for municipal and state government. A summary of these literatures can be found in, Richard R. John, “Governmental Institutions as Agents of Change,” Studies in American Political Development, vol. 11, no. 2 (1997), 347-80; and William J. Novak, “The Myth of the Weak American State,” American Historical Review, vol. 113, no. 3 (2008), 752-72.

28 The dismantling of transatlantic mercantilist systems had different consequences elsewhere. In Buenos Aires, for instance, it created a lengthy process of juridical and economic reconstruction that Jeremy Adelman characterizes as a “maelstrom” of chaos and disorder. Adelman,

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