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

29 Anxieties over the reach of the market in the age of Jackson are best understood through the burgeoning literature on the market revolution. See, John Lauritz Larson, The Market Revolution in America: Liberty, Ambition, and the Eclipse of the Common Good (New York: Cambridge University Press, 2009); Charles G. Sellers, The Market Revolution: Jacksonian America, 1815-1846 (New York: Oxford University Press, 1991); Scott C. Martin, ed., Cultural Change and the Market Revolution in America (New York: Roman & Littlefield, 2005); Melvyn Stokes and Stephen Conway, The Market Revolution in America: Social, Political, and Religious Expressions (Charlottesville, VA: University of Virginia Press, 1996); Martin Bruegel, Farm, Shop, Landing: The Rise of a Market Society in the Hudson Valley, 1780-1860 (Durham, NC: Duke University Press, 2002). The idea of a market revolution built on an earlier series of studies interested in dating a rural “transition to capitalism.” See, for instance, Christopher Clark, The Roots of Rural Capitalism: Western Massachusetts, 1780-1860 (Ithaca: Cornell University Press, 1990); Michael Merrill, “Cash is Good to Eat: Self-Sufficiency and Exchange in the Rural Economy of the U.S.,” Radical History Review (1977), 42-71. A critique of this literature is Winifred Barr Rothenberg, From Market-Place to a Market Economy: The Transformation of Rural Massachusetts, 1750-1850 (Chicago: University of Chicago Press, 1992).

30 Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton, NJ: Princeton University Press, 2009), 5-6. As Canaday explains, this approach entails studying, not policies alone, but how officeholders put policies into practice, “close to the ground.” Though they do not explicitly identify with Canaday’s approach of “the social history of the state,” Hendrik Hartog and most recently Laura Edwards provide powerful examples of the possibilities of this methodology. See, Hendrik Hartog, “Pigs and Positivism,” Wisconsin Law Review (1986), Hendrik Hartog, “Pigs and Positivism,” Wisconsin Law Review, no. 4 (1985), 899-935; Laura F. Edwards, The People and their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009). Arguably, the approach closely follows E.P. Thompson’s idea of the “rule of law” as both a set of formal legal codes as well as a “medium within which other social conflicts have been fought out.” Thompson, Whigs and Hunters: The Origin of the Black Act (New York: Pantheon Books, 1975), 267, and more generally, 219-69. For a detailed discussion of the historiographical stakes involved in embracing the “social history of the state,” see Romain Huret, “All in the Family Again? Political Historians and the Challenge of Social History,” Journal of Policy History, vol. 21, no. 3 (June, 2009), 239-263.

31 On empire, see Brewer, Sinews of Power; 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); Alison Games, The Web of Empire: English Cosmopolitans in an Age of Expansion, 1560-1660 (New York: Oxford University Press, 2008); Julia Adams, The Familial State: Ruling Families and Merchant Capitalism in Early Modern Europe (Ithaca: Cornell University Press, 2005); Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World (Chapel Hill: University of North Carolina Press, 2005); Alison Gilbert Olson, Making the Empire Work: London and American Interest Groups, 1690-1790 (Cambridge, MA: Harvard University Press, 1992); P.J. Marshall, The Making and Unmaking of Empires: Britain, India, and America, c. 1750-1783 (New York: Oxford University Press, 2005); H.V. Bowen, The Business of Empire: the East India Company and Imperial Britain, 1756-1833 (New York: Cambridge University Press, 2006), esp. 53-83; Kenneth J. Banks, Chasing Empire Across the Sea: Communications and the State in the French Atlantic (Ithaca: McGill-Queens University Press, 2002). On the mechanics of governmental institutions, see Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge: Harvard University Press, 1995); 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; John, “Farewell to the ‘Party Period’: Political Economy in Nineteenth-Century America,” Journal of Policy History, vol. 16, no. 2 (2004), 117-125; William J. Novak, “The Myth of the Weak American State,” American Historical Review, vol. 113, no. 3 (2008), 752-72.

32 The vast literature on political ideology and politics is too vast to detail here. Representative works are: James T. Kloppenburg, “The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse,” Journal of American History, vol. 74, no. 1 (Jun., 1987), 9-33; Robert E. Shalhope, “Republicanism and Early American Historiography,” William and Mary Quarterly, 3^rd Series, vol. 39, no. 2 (Apr., 1982), 334-356; Daniel T. Rodgers, “Republicanism: the Career of a Concept,” Journal of American History, vol. 79, no. 1 (Jun., 1992), 11-38. Leading monographs are: Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill: University of North Carolina Press, 1969); Wood, Radicalism of the American Revolution (New York: Vintage Books, 1992); Robert E. Shalhope, The Roots of American Democracy: American Thought and Culture, 1760-1800 (Boston: Twayne, 1990); J.G.A. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975); Pocock, Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (New York: Cambridge University Press, 1985); Joyce Oldham Appleby, Capitalism and a New Social Order: The Republican Vision of the 1790s (New York: New York University Press, 1984); Drew R. McCoy, The Elusive Republic: Political Economy in Jeffersonian America (New York: Norton, 1980); Harry L. Watson, Liberty and Power: The Politics of Jacksonian America (New York: Hill and Wang, 1990). A good introduction to the voluminous literature on the Supreme Court in federal politics and governance is Morton J. Horwitz, Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977); R. Kent Newmyer, The Supreme Court Under Marshall and Taney (New York: Crowell, 1968); Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985); Newmyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge, LA: Louisiana State University Press, 2001). For a summary of the literature on political parties and governance, see Joel H. Silbey, The American Political Nation, 1838-1893 (Palo Alto, CA: Stanford University Press, 1991); Ronald P. Formisano, “The ‘Party Period’ Revisited,” Journal of American History, vol. 86, no. 1 (Jun., 1999), 93-120.

33 Novak, People’s Welfare, suggests that statecraft in the early republic emanated from state legislatures and judiciaries. Hartog, Public Property and Private Power, is a strong example of municipal government in the early republic.

34 For leading studies of the federal government, see, John, Spreading the News; Robin Einhorn, American Taxation, American Slavery (Chicago: University of Chicago Press, 2007); Edling, Revolution in Favor of Government; Brian Balogh, A Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America (New York: Cambridge University Press, 2009); Laura Jensen, Patriots, Settlers, and the Origins of American Social Policy (New York: Cambridge University Press, 2003); Adam Rothman, Slave Country: American Expansion and the Origins of the Deep South (Cambridge, MA: Harvard University Press, 2005); Brian Schoen, The Fragile Fabric of Union: Cotton, Federal Politics, and the Global Origins of the Civil War (Baltimore, MD: Johns Hopkins University Press, 2009); Sean Patrick Adams, Old Dominion, Industrial Commonwealth: Coal, Politics, and Economy in Antebellum America (Baltimore: Johns Hopkins University Press, 2004); B. Zorina Khan, The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790-1920 (New York: Cambridge University Press, 2005); Stefan Heuman, “The Tutelary Empire: State- and Nation-Building in the 19^th Century United States,” Ph.D. Dissertation, University of Pennsylvania, 2010. For summaries of this field, see John, “Governmental Institutions as Agents of Change”; Mark R. Wilson, “Law and the American State, From the Revolution to the Civil War: Institutional Growth and Structural Change,” in The Cambridge History of Law in America, Volume II: The Long Nineteenth Century (1789-1920), ed. Michael Grossberg and Christopher Tomlins (New York: Cambridge University Press, 2008), 1-35, 697-705.

35 Recent literature on the early American state follows 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. An older approach to the American state dwelled on patronage and ‘high’ administration. See, Carl E. Prince, Federalists and the Origins of the U.S. Civil Service (New York: New York University Press, 1977); and New Jersey’s Jeffersonian Republicans: The Genesis of an Early Party Machine (Chapel Hill: University of North Carolina Press, 1967). Leonard White’s detailed studies remain the single most comprehensive source on the executive departments. See, Leonard D. White, The Federalists: A Study in Administrative History (New York: MacMillan, 1947). White, The Jeffersonians: A Study in Administrative History (New York: MacMillan, 1951); White, The Jacksonians: A Study in Administrative History (New York: MacMillan, 1954). For an excellent summary of White’s opus, Richard John, “In Retrospect: Leonard D. White and the Invention of American Administrative History,” Reviews in American History, vol. 24, no. 2 (1996), 344-360.

36 J. Willard Hurst pioneered study of law “in action.” See, Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, Wisc.: University of Wisconsin Press, 1956); Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge: Belknap Press of Harvard University Press, 1964); William J. Novak, “Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst,” Law and History Review, vol. 18, no. 1 (Spring, 2000), 97-145. For works that build on different aspects of Hurst’s legacy, see William J. Novak, The People’s Welfare: Law & Regulation in Nineteenth Century America (Chapel Hill: University of North Carolina Press, 1995); Hulsebosch, Constituting Empire; Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution (New York: Cambridge University Press, 2001); Canaday, The Straight State.

37 Bernard Bailyn, “Becker, Andres, and the Image of Colonial Origins,” New England Quarterly, vol. 29, no. 4 (Dec., 1956), 531.

38 Americans were hardly alone in noticing the generative effects of commerce in these years. Istvan Hont understands eighteenth-century political economy to hinge on “a vision of the future as a global market of competing commercial states.” Hont, Jealousy of Trade, 4. See also Cheney, Revolutionary Commerce, 4-6.

39 The immense influence of the French Revolution on American politics and society is well documented. Most recently, Rachel Hope Cleves provocatively argues that the Reign of Terror in particular sparked anxiety in the United States that, in turn, shaped the fabric of political discourse. Cleves, The Reign of Terror in America: Visions of Violence from Anti-Jacobinism to Antislavery (New York: Cambridge University Press, 2012).

40 Nor have scholars understood the magnitude of the United States material confrontation with the Napoleonic Wars through the institution of the customhouse. See, for instance, Herbert Heaton, “Non-Importation, 1806-1812,” Journal of Economic History, vol. 1, no. 2 (Nov., 1941), PP; Donald R. Hickey, “America’s Response to the Slave Revolt in Haiti, 1791-1806,” Journal of the Early Republic, vol. 2, no. 4 (Winter, 1982), 361-79; Tim Matthewson, “Jefferson and Haiti,” Journal of Southern History, vol. 61, no. 2 (May, 1995), 209-248.

41 Thomas Jefferson, Fourth Annual Message to Congress, November 8, 1804, Annals of Congress, 8^th Cong., 2^nd Sess., (Sen.), 11. Jefferson’s language of the “well-ordered society” invoked a common law tradition of governmental police for the protection of the health and safety of the people. See, Novak, People’s Welfare.

42 George Washington, Neutrality Proclamation, Columbian Centinal, May 4, 1793. On the significance and crafting of the Proclamation, see Elkins and McKitrick, Age of Federalism, 338-339, 353; William R. Casto, Foreign Affairs and the Constitution in the Age of Fighting Sail (Columbia: University of South Carolina Press, 2006), 31-34. On the difficulty of defining neutrality, see Stanley L. Engerman, Naval Blockades in Peace and War: An Economic History Since 1750 (New York: Cambridge University Press, 2006), 67-68.

43 Jeremiah Olney to Alexander Hamilton, March 31, 1794, M178, Roll 29.

44 Christopher Gore to Tobias Lear, July 28, 1793, Folder 1, Tobias Lear Papers, LC. Jacob G. Koch to Averhoff von Scheven, April 11, 1796, Box 3, Folder 3, Papers of Jacob Gerhard Koch, LC [hereafter, Koch Papers]. Fichter, So Great a Proffit, 57; Cathy D. Matson, “The Revolution, the Constitution, and the New Nation,” in Cambridge Economic History of the United States (New York: Cambridge University Press, 2000), 1:398.

45 Michelle Craig McDonald, “The Chance of the Moment: Coffee and the New West Indies Commodities Trade,” William and Mary Quarterly, vol. 62, no. 3 (July, 2005), 465. Brooke Hunter, “Wheat, War, and the American Economy during the Age of Revolution,” in ibid., 516-7. James Alexander Dun, “‘What Avenues of Commerce, Will You, Americans, not Explore!’: Commercial Philadelphia’s Vantage Point onto the Early Haitian Revolution,” in ibid., 476. John J. McCusker, “The Demise of Distance: The Business Press and the Origins of the Information Revolution in the Early Modern Atlantic World,” American Historical Review, vol. 110, no. 2 (April, 2005), 318, argues that this significance of the business press began a decade earlier, in 1783. On Americans cultural experience of consumption and its role in identity formation, see Kariann Akemi Yokota, Unbecoming British: How Revolutionary America Became a Postcolonial Nation (New York: Oxford University Press, 2011); David Jaffee, A New Nation of Goods: The Material Culture of Early America (Philadelphia: University of Pennsylvania Press, 2010); Joanna Cohen, “‘Millions of Luxurious Citizens’: Consumption and Citizenship in the Urban Northeast, 1800-1865,” Ph.D. Dissertation, University of Pennsylvania, 2009. Economic historians, however, disagree over the extent to which this commercial development stimulated broad-based economic growth in the first years of the early republic. See Claudia D. Goldin and Frank D. Lewis, “The Role of Exports in American Economic Growth during the Napoleonic Wars, 1793 to 1807,” Explorations in Economic History, vol. 117, no. 1 (Spring, 1980), 6-25; Douglass Cecil North, The Economic Growth of the United States, 1790 -1860 (Englewood Cliffs, N.J.: Prentice-Hall, 1961); Donald R. Adams, “American Neutrality and Prosperity, 1793-1808: A Reconsideration,” Journal of Economic History, vol. 40 (Dec., 1980), 714-735; Matson, “The Revolution, the Constitution, and the New Nation,” 399.

46 Alexander Hamilton, “Public Credit,” January 21, 1795, in ASP-Fi 1:320. Receipts and Public Debt, April 17, 1810, ASP-Fi 1:423-4.

47 William H. Bergmann, The American National State and the Early West (New York: Cambridge University Press, 2012), 134-5. Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of Public Lands, 1789-1837 (New York: Oxford University Press, 1968); Daniel Feller, The Public Lands in Jacksonian Politics (Madison, W.I.: The University of Wisconsin Press, 1984). On the growth of federal institutions more broadly, see Balogh, Revolution Out of Sight, 95-111.

48 Treaty of Amity and Commerce Between the United States of America and His Most Christian Majesty, February 6, 1778, 8 Statutes 12 (1778), 20, 22, 24, 26, 28.

49 Genêt’s instructions from the French Girondin government were ambitious and wide-ranging. In addition to securing a base for French privateers, Genêt was to foment rebellion against British and Spanish rule among French settlers in Canada to the north, as well as Florida and Louisiana to the South. He was also charged with renegotiating the 1778 Treaty with the United States on even more favorable terms. As William Casto explains, these instructions were thus “a mixture of pragmatism and idealism” that reflected “the Girondins’ radical European foreign policy.” Casto, Foreign Affairs and the Constitution in the Age of Fighting Sail, 14.

50 Christopher Gore to Tobias Lear, July 28, 1793. See also, Zebulon Hollinsgworth to John Fitzgerald, May 22, 1793, Folder 7, Records Relating to Captures, 1789-1801 (Alexandria), French Spoliation Claims, #E1265, RG 36, Archives I.

51 Duffy, Soldiers, Sugar, and Seapower, 107. Fulwar Skipwith, Summary of the French Decrees Affecting the Commerce of the United States Between the Years 1793 and 1800, Box 12, French Proclamations, Causten-Pickett Papers. A year later, France would more formally establish American vessels as fair game for French privateers. George A. King, The French Spoliation Claims (Washington, D.C.: Government Printing Office, 1916), 7-8.

52 Eliga H. Gould, “Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, circa 1772,” William and Mary Quarterly, third series, vol. 60, no. 3 (Jul., 2003), 487-8.

53 Daily Advertiser, July 1, 1793, 2. See also, Daily Advertiser, August 12, 1793, 2.

54 Moxon et al. v. The Fanny, 17 F. Cas. 942 (1793). Affidavit of James Cavan and James Kennedy, March 26, 1798, Folder 2, Records Relating to Captures, 1789-1801 (Alexandria), French Spoliation Claims, #E1265, RG 36, Archives I. The affidavits belong to James Porter, n.d. [c.a. 1797]; William Hall, March 9, 1798; and William Hodgson, March 6, 1798, in ibid.

55 Statement of the Tonnage of American vessels entered into the ports of the United States in the years…1790, and…1794…, January 22, 1796 ASP-Commerce and Navigation 1:330.

56 See, Bailyn, New England Merchants, 153; Koot, Empire at the Periphery, 119-125; Matson, Merchants & Empire;

57 The federal judiciary was another important institution in this regard. Throughout 1793, merchants involved in overseas commerce complained that French consuls were holding legal proceedings to adjudicate prizes brought to Charleston—what Charleston merchant Robert Hazelhurst called a “counsel’s court [sic].” Robert Hazelhurst to William Wilson & Co., Stepmber 25, 1793, reprinted in Petition of William Wilson et al., November 11, 1807, Reel 5, Unbound Records of the U.S. House of Representatives, 10^th Cong., 1807-1809, M1711, RG 233, Archives I. The United States Supreme Court would end this practice of the “counsel’s court” in early 1794 in Glass v. the Sloop Betsey. The Jay Court denied that any “foreign power can…institute…any court of judicature…within the jurisdiction of the United States.” Additionally, the Court ruled that only the federal courts possessed exclusive jurisdiction over prize and admiralty cases. At the very least, then, American vessels taken as prizes and hauled to American ports would be protected by the rule of law. Glass v. The Sloop Betsey, 3 U.S. (3 Dall.) 6 (February 18, 1794).

58 William Rawle, Libel for Restitution of a Captured Ship and Cargo, n.d. [1793], reprinted in The American Admiralty, ed. Erastus Cornelius Benedict (New York: Banks & Gould, 1850), 542-3. Law Case. Robert Findley, jun. and others. Ship William. Loudon’s Register, June 26, 1793, 2.

59 Findley v. The William, 9 F. Cas. 57, 61-62 (1793). Moxon v. The Fanny, 17 F. Cas. 942. In Maryland, federal District Judge William Paca issued “a similar ruling” in Glass v. The Sloop Betsey, 3 U.S. 6 (1794), according to Stewart Jay, Most Humble Servants: The Advisory Role of Early Judges (New Haven: Yale University Press, 1997), 272 n. 63. See District Thomas Bee’s dicta in Ramon de Salderondo v. Nostra Signora del Camino et al. (1794), in Reports of Cases Adjudged in the District Court of South Carolina, ed. Thomas Bee (Philadelphia: William Farrand, 1810), 46. Incidentally, a year later, Richard Peters ordered the seizure of a French privateer Cassius for supposedly unlawfully seizing Philadelphia merchant James Yard’s William Lindsay nearby Saint Domingue. The United States Supreme Court rebuked Peters and reversed his order while upbraiding Yard as a rabble-rouser seeking “to disturb” Franco-American relations for his own benefit. United States v. Peters, 3 U.S. 121 (1795).

60 1 Statutes at Large 381, 381-4 (1794).

61 Alexander Hamilton, Circular to Collectors of Customs, June 17, 1794, Reel 2, Treasury Circulars.

62 Alexander Hamilton, Circular to Collectors of Customs, May 13, 1793, Reel 2, Treasury Circulars. Thomas Bee’s opinion in

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