Creating American Land: A Territorial History from the Albany Plan to the U.S. Constitution

Abstract

Three questions illustrate important dynamics of territorial law in eighteenth-century North America. First, how did the United States’ empire emerge from the Revolution’s anti-imperial moment? Various ideas about the British Empire appear in Benjamin Franklin’s Albany Plan, the Seven Years’ War, and the Quebec Act. The Articles of Confederation repudiated some of those concepts in order to support territorial self-governance and states’ authority. Yet a political precondition for ratifying the Articles was to create a new territorial empire that was not authorized under the confederation’s framework. The Articles and Constitution did allow territories to seek statehood, but only on terms and timeframes prescribed by an imperial legislature where peripheral places and people were not represented.

Second, how did British colonies as creatures of imperial convenience become American states in a constitutional republic? Legal disputes over the territorial status of colonies and states occurred in the same moments that produced the American nation and empire. Eighteenth-century Britons had debated under their legal system whether colonies were territorially significant, and post-revolutionary Americans faced similar struggles about states. Some Americans viewed states as subordinate creatures of a national government and war, while other patriots did not. As a matter of legal history, the central government and the states were territorial co-products that were jointly constructed and mutually reliant. The Constitution’s textual concern about the integrity of state borders and state governments was the result of this historical process, not its foundational premise.

Third, how did British and American territorial notions intersect with those of Native Americans? The Albany Conference’s proposal for intracontinental empire occurred during an episode that was dominated by concerns over Native American territory. Much later, the Constitution’s architecture of states and empire was vital to dispossessing Native Americans. Territorial interactions among Euroamericans and Native Americans continually raised theoretical questions about the nature of law, substantive questions about which land was whose, and institutional questions about how to make such decisions. Diverse territorial systems blended statehood and statelessness, imperial republic and subordinated colonialism, lawfulness and banditry, thereby defining in territorial terms what the United States was and what it would become.