A DISSERTATION PRESENTED TO THE FACULTY IN CANDIDACY FOR THE DEGREE OF DOCTOR OF PHILOSOPHY RECOMMENDED FOR ACCEPTANCE BY THE DEPARTMENT OF HISTORY
Adviser: Hendrik Hartog
“The rulers of Great Britain have . . . amused the people with the imagination that they possessed a great empire on the west side of the Atlantic. This empire, however, has hitherto existed in imagination only. It has hitherto been, not an empire, but the project of an empire.”
Adam Smith, The Wealth of Nations 1
“A nation may be said to consist of its territory, its people, and its laws. . . . That portion of the earth’s surface which is owned and inhabited by the people of the United States is well adapted to be the home of one national family, and it is not well adapted for two or more.”
Abraham Lincoln, Annual Message to Congress 2
“I take SPACE to be the central fact to man born in America, from Folsom cave to now. I spell it large because it comes large here. Large, and without mercy.”
Charles Olson, Call Me Ishmael3
“[W]hen one asks another what clan they belong to, the question literally translates to ‘what clay are you made of?’ Many Indigenous knowledge holders talk about the idea that the land does not belong to Native people, but rather Native people belong to the land.”
Susan M. Hill, The Clay We Are Made Of 4
Edmund Morgan wrote that “government requires make-believe” because it depends on factually plausible fictions, and he was half-right. Human beliefs rooted in fiction are what make governments work, and similarly fictional beliefs prescribe standards to judge whether governments work. In the late eighteenth century, North American governments may have seemed extraordinarily fictional as they twisted, tumbled, rose, and resurfaced from one decade to the next. Yet this book explores a specific category of fiction during that period: territorial links between people and land, between would-be Americans and would-be America. 5
Historians have routinely studied how people organized their activities through notions of “the state.” They have less often questioned how individuals composed themselves through “territory,” a term that describes fundamental connections between groups of people and sections of land. A great many American histories have asked how the United States came to be as a military achievement, a cultural image, a political venue, an ideological event, or a social fact. But only rarely do they examine how the United States came into existence as a matter of territory.
Much like government and the state, territory is built upon fiction as well as fact,
imagination as well as reality, and it is hard to separate social facts from fictions when they are linked in human experience. The term “imagined community” is just a “community” when people feel their integrated existence as something immediate and real. Fictions are fictions because of human creativity, but they work much like facts when humans believe. As one scholar has explained, “[w]e might think of imaginative geographies as fabrications, a word that usefully
combines ‘something fictionalized’ and ‘something made real,’ because they are imaginations given substance.” 6
Obvious examples of eighteenth-century territorial fictions might include European maps of North America, which were drawn and redrawn based on legal arguments about which lands were whose. Bright ink was spread onto neatly drawn spaces, but faraway environments were not immediately affected. Trees swayed and creeks bubbled, individuals were born and died, without any recognition that on some distant piece of paper, the ground underfoot had changed colors once again.
Territory sometimes seemed fictional, and so did law and government. But they were not fictional to everyone all of the time. For elite individuals who created territorial law, and for many other people who felt its impact, the law of territory could be as factual as a hurricane. Diplomats, lawyers, and mapmakers fought over territorial claims as though they were matters of life or death. And many people did in fact bleed and die amid territorial struggles, sometimes crossing oceans for the opportunity, sometimes fighting beside their ancestors’ bones.
Migrants, occupants, and investors also structured their lives around controversial opinions about what was “their land” and what was not. And in turn, those decisions affected and were affected by countless people — including women and people of color — who were alleged to have no land claims, or the wrong kind of claims. For some people, territorial fictions thus became brutal realities, even as practical forces influenced which fictions would survive.
It should be evident that complex territorial relationships between people and land can be found in many kinds of historical materials, including religious, cultural, demographic, intellectual, social, and economic sources. Yet this project offers an “unapologetically” legal history of territory, and its focus on legal questions and episodes will primarily involve people who saw territory, law, and government in a factual light rather than a fictional one. The recurrent question is why. Why did individuals with busy lives and finite energies wrangle over territory and law? What did they seek to accomplish, how did they think territorial law could help, and to what extent were they right? Legal actors and instruments characteristically pretended to dominate operational power and lived reality, but the strength and weakness of those pretensions should always remain in question. As one historian suggested long ago, it is unacceptable for scholars simply to adopt a “more or less unconscious belief” that “legal doctrine could, should, and did make a difference in the ‘real’ world.” 7
Most of the people who lived in North America during this period — like most people all of the time — were not featured in legal materials at all. Conversely, the main actors discussed here — like people in many other contexts — were silently coded by gender, class, race, age, religion, health, wealth, and power. Crucial details about whether legal actors’ territorial dreams influenced or failed to influence extralegal social life and lived experience must remain largely offstage, for the same practical reasons that many nonlegal histories typically downplay legal materials and controversies.
Whether legally oriented or not, too many histories of North America have bypassed analysis of territory altogether, focusing on facts and fictions about “the state” without asking precisely where, or how, such governments were located. For example, events might be described in British North America,” “New York,” or “Iroquoia,” without giving much attention to what those phrases meant, for whom, or in what sense. Likewise, many territorial spaces and boundaries are routinely presumed to be solid natural facts, as when lands are casually described as “Virginia,” “belonging to Virginia,” or “becoming Virginia.”
One extreme example is George Bancroft’s description of sixteenth-century voyages and a failed Roanoke village under the heading: “England takes possession of the United States.” 8 On one hand, the term “takes possession” clearly hides a great deal of violence, fraud, disease, diplomacy, reproduction, and politics. But Bancroft also failed to explain exactly how it was that scattered sailors and failed migrations could cause “England” to take possession of any land, according to whom, and based on what territorial norms. Equally important, of course no one from the sixteenth century would ever live long enough to witness anything called “the United States.” Such mistakes are only possible when a historian’s focus on describing when events occurred is allowed to annihilate comparably complex ideas about where events happen, and how that applicable “where” is determined. By contrast, the narrative of Creating American Land seeks to examine what certain legal designations of territory meant at particular times, whence they derived, and why certain participants did or did not care about them.
For readers who are uneasy with the idea of territorial history, a few simplified visual images might help, with more elaborate verbiage to follow shortly. To describe the relationship between people and land, governments might be imagined as pre-established entities that float over particular patches of land, radiating power down to describe their territorial claims: “This land belongs to that government.” On the other hand, power drawn from territorial lands might shine upward, with beams converging on a government sustained from below: “That government belongs to this land.” Or both might happen at once. From the viewpoint of territorial fictions, such projections might seem just as solid and intelligible as a drawn shape on a map. As historical facts, however, territorial claims were often splotchy and variable, growing stronger and weaker as they scraped, crashed, and merged into one another. 9
This book will examine a particular set of North American territorial systems in the late eighteenth century. For some historians, this period is discussed as though thirteen separate, stable, and preestablished “states” united among themselves to form a derivative national government. By contrast, other narratives treat states as subordinate entities that were created by the national government through revolution. Different from both, this project describes aspirationally broad Anglo-American governments and narrow colonies/states as jointly constructed and mutually reliant, with Native American ideas about territory as continually vital influences and effects on that process.
As a legal matter, the United States emerged from the start as a composite system that was built to include states, a nation, and an empire as well. The famous social, economic, and military forces that would imperialize American territory in the nineteenth century — with remarkably systematic and violent dispossession of many Native American groups — always coexisted with, and were framed by, legal ideas about territory that were created and disputed in the eighteenth century.
If historians who analyze other periods and places were to apply similar methods of territorial history, important new perspectives might emerge about processes by which geographic claims have worked to unite, divide, insulate, and intermix groups of people. Even for British North America, for example, territorial conflicts and arrangements looked very different in the seventeenth century than they would later on. New Spain was similar to New France but also different. And historians of “Old” imperial powers would hasten to add that disputed territorial arrangements were hardly unique to North America.
Almost every form of race, ethnicity, and citizenship has been defined through territorial associations. The location and permeability of territorial borders have influenced whether countless individuals are viewed as natives, residents, aliens, or intruders. 10 And nothing has more consistently inspired collective violence than an asserted need to defend, reclaim, or destroy territorial homelands. Terms like “our land” and “their land” are as prevalent as “us” and “them,” and territorial history as a subfield should study both pairs together. From the United States to the European Union, from Israel/Palestine to Catalonia or even the “Islamic State of Iraq and the Levant,” the importance of territorial claims and disputes would be hard to overstate. Historical analysis of how territorial claims emerged and clashed might shed light on how various territorial groups — Americans, Spaniards, Iroquois — came to be. It might also lay bare mechanisms by which some territorial claims and claimants have succeeded while others have not.
Without a systematic focus on territorial claims, people in certain contexts have taken for granted who they are, where they are from, and how much that matters. Elsewhere, the opposite has occurred. A historian recently wrote that “[t]erritory—an idea that seemed to have fallen into genteel disuse—has intruded into our lives with a renewed and menacing urgency.” But in every circumstance, telling the truth about territorial affiliations is a complicated business. On one hand, for example, some present-day news reports feature sharp-lined maps of territories that are “controlled by” some group or other. That version of reality marks territorial claims based on immediate episodes of bloodshed that at most aspire to produce lasting forms of “control.” Other popular commentators implicitly criticize hasty identities between territory and temporary violence. Instead, they describe invasions, occupations, resistance, and liberations of territory in ways that implicitly allocate “real” ownership based on more visions of more durable law, diplomacy, history, or culture.11
Violence and peace, law and disruption, new and old. Such diverse interpretations of “whose land” and “why” suggest that many kinds of historical materials would be useful in analyzing which land was whose, when, and how — with this book’s legal focus representing only one possibility. The common thread among all kinds of territorial history would be to better understand how groups of people have assembled with and divided from each other by reference to their putative territory. As Caryl Phillips once wrote, “Belonging is a contested state. Home is
a place riddled with vexing questions.” One lesson from the history that follows, and perhaps from methods of territorial history more broadly, is that territorial crises and confusions cannot be wholly segregated to exotic backcountries, momentary tumults, or a lawless American “west.” Instability, improvisation, and illegality were crucial from the very first moments of American territorial law, operating as long-ignored foundations of the United States’ constitutional homeland. 12
1 Adam Smith, The Wealth of Nations (New York 1902) vol. 3, p. 402.
2 “December 1, 1862—Annual Message to Congress,” Abraham Lincoln Complete Works (eds. John G. Nicolay & John Hay) 1908) vol. 2, p. 268.
3 Charles Olson, Call Me Ishmael (Johns Hopkins  1997)
4 Susan M. Hill, The Clay We Are Made Of: Haudenosaunee Land Tenure on the Grand River (U Manitoba 2017) p.5.
5 Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America 13 (1988)
6 Derek Gregory, The Colonial Present (2004) p. 17. Cf. Wallace Stevens, The Necessary Angel:Essays on Reality and the Imagination 6, 28, 33 (1942) (“[Our obsession about the truth] is not only that the imagination adheres to reality, but, also, that reality adheres to the imagination and that the interdependence is essential.”).
7 Hendrik Hartog, Man and Wife in America: A History 2 (Harvard 2000); Hendrik Hartog, Public Property and Private Power: The Corporation of New York in American Law, 1730-1870, at 6-8 (UNC 1983).
8 See Gordon S. Wood, “The Relevance and Irrelevance of American Colonial History,” in Imagined Histories: American Historians Interpret the Past (eds, Anthony Molho & Gordon S.
Wood 1998) p. 147.
9 Although “government” is the primary reference point for this dissertation, similar ideas about collective territory could also be based upon religion, ethnicity, or other social ties.
10 Cf. Daniel T. Rodgers “Cultures in Motion: An Introduction,” in Cultures in Motion (eds. Daniel T. Rodgers, Bhavani Raman, & Helmut Reimitz) (Princeton 2014); Helmut Reimitz, “From Cultures to Cultural Practices and Back Again,” in Cultures in Motion; Michael D. Jackson, At Home in the World (Duke 1995) (“Ours is a habitus of walls and enclosures, or well-marked exits and entrances, paths and roads. This material habitus determines a particular sensibility which sees boundaries as a precondition of meaning. . . . For us, security is a function of the substantiality of the ideas and places we construct.”), quoted in Nicholas Blomley, “Cuts, Flows, and the Geographies of Property,” Law, Culture and the Humanities Vol. 7(2), p. 203..
11 Charles S. Maier, Once Within Borders: Territories of Power, Wealth, and Belonging since 1500, at pp. 1, 18 (Harvard 2016). Cf. Edward Said, Culture and Imperialism (1993) 78 (“To think about distant places, to colonize them, to populate or depopulate them: all of this occurs on, about, or because of land. . . . Imperialism and the culture associated with it affirm both the primacy of geography and an ideology about control of territory. The geographical sense makes projections — imaginative, cartographic, military, economic, historical, or in a general sense cultural.”); Violent Geographies: Fear, Terror, and Political Violence (eds. Derek Gregory & Alan Pred 2007)
12 Caryl Phillips, New World Order: Essays 6 (Vintage 2001); see Sean Hawkins & Philip D. Morgan, “Blacks and the British Empire: An Introduction,” in Black Experience & the Empire 1,33 (2004).