History

The Canadian Historical Review 100, 4, December 2019 © University of Toronto Press doi: 10.3138/chr.2019-0028

ELIZABETH MANCKE

The Age of Constitutionalism and the New Political History

Abstract: Over the long eighteenth century (1689–1848), participatory government and imperialism expanded rapidly throughout the world, often accompanied by revolutionary upheaval and always accompanied by constitutional debates and reforms. This article argues for calling the era the Age of Constitutionalism, an Atlantic, indeed global, phenomenon that includes revolutions as one response to a constitutional crisis but does not marginalize non-violent movements for constitutional change and reform. This framing shifts the epistemological emphasis and meta-narrative to an object of change – namely, constitutional reform – and away from an extreme tool of constitutional change – revolution. It is especially critical for the political history of early Canada, which had no revolutions but underwent significant and contentious constitutional changes that were shaped by Indigenous peoples, settlers, and imperial officials. By shifting the focus away from the din of revolutions to constitutional debates, the sense of the range of political actors during these decades of global upheaval expands dramatically.

Keywords: constitution, revolution, Royal Proclamation of 1763, Quebec Act, public sphere, civic society, new political history

Résumé : Souvent accompagnés de bouleversements révolutionnaires et toujours assortis de débats constitutionnels et de réformes, le gouvernement participatif et l’impérialisme se sont rapidement développés dans le monde entier au cours du long xviiie siècle (1689–1848). Selon l’auteure, cette période devrait s’appeler l’Ère du constitutionnalisme, expression désignant un phénomène atlantique, voire mondial, qui inclut les révolutions à titre de réponse à une crise constitutionnelle, sans pour autant marginaliser les mouvements non violents prônant le changement constitutionnel et la réforme. Ce recadrage déplace l’insistance épistémologique et le métarécit vers un objet de changement – les réformes constitutionnelles – l’éloignant ainsi de la révolution, outil extrême de changement constitutionnel. La chose est particulièrement importante pour l’histoire politique des débuts du Canada, qui n’a pas connu de révolutions, mais a subi des changements constitutionnels déterminants et controversés, lesquels ont été façonnés par les peuples autochtones, les colons et les fonctionnaires impériaux. Si l’on détourne l’attention du tumulte des révolutions et qu’on la porte vers les débats constitutionnels, on constate que l’éventail des acteurs politiques durant ces décennies de bouleversements mondiaux s’élargit considérablement.

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1 Peter H. Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests (Toronto: University of Toronto Press, 2017); Terry Fenge and Jim Aldridge, eds., Keeping Promises: The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada (Montreal and Kingston: McGill-Queen’s University Press, 2015).

2 The start date is the Glorious Revolution in England (1688–9) and the development of the Crown in Parliament; the end date is the 1848 revolutions in Europe. The decades in between saw a marked expansion in the idea that participatory government should be the norm, not the exception, in the European world, including European colonies overseas, and that the terms of participation would be defined by constitutions.

Mots clés : constitution, révolution, Proclamation royale de 1763, Acte de Québec, sphère publique, société civile, nouvelle histoire politique

The Royal Proclamation of 1763 and the Quebec Act, passed by Parliament in 1774, are widely acknowledged as integral parts of the Canadian Constitution.1 Less well known is the role of the office of the governor general. Dating from 1786, it anticipated a need for greater federal coordination and cooperation among the British North American colonies. Each of these parts of Canada’s Constitution is representative of the challenges and debates of the eighteenth-century world as well as the ongoing concerns in every part of the country: relations among Indigenous peoples, the Crown, and settler populations; the integration of for- merly French subjects into the British Empire; and a jurisdictional vision for British North America. Historical frameworks for understanding the intercon- nections among these concerns and similar constitutional developments, how- ever, are limited.

This article makes the case for analyzing early Canada’s constitutional and political developments within the long eighteenth century, circa 1689–1848, and in terms of an “Age of Constitutionalism,” an era that encompasses revolutions as one kind of response to constitutional crises but that does not make them the overarching framework.2 This reframing, discussed in the first part of the article, responds to how scholars are now approaching the new political and constitu- tional histories of the Atlantic world. Their subjects are more diverse, less focused on the big powers – Britain, France, and then the United States – and more on middling and small powers, and less centred on the emergence of the nation-state. As well, historians are analyzing a diverse array of cultural and political develop- ments, such as culturally specific expressions of the public sphere, many of which are relevant to post-1783 British North America. The second part of this article focuses more closely on British North America and on how the concept of an “Age of Revolutions” is a highly problematic epistemological frame and filter, especially for peoples in northern North America as well as in other contexts. The third section concludes with a discussion of how a long eighteenth-century and Age of Constitutionalism frame might affect historical analyses, using the Proclamation of 1763, the Quebec Act, and the creation of the office of the governor general as examples. They were inflection points in power configurations and constitutional debates, ones that illuminate deeper changes in the power dynamics of north- ern North America and the Atlantic world and, in turn, suggest how an Age of Constitutionalism frame might shift our scholarly perspectives.

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3 Sugar Act, 1764, 4 Geo. 3, c. 15; John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government,” in Aboriginal and Treaty Rights in Canada: Essays on Law, Equality and Respect for Difference, ed. Michael Asch (Vancouver: ubc Press, 1997), 155–72, 256–67. The Sugar Act is mentioned in twelve of ninety essays in Jack P. Greene and J. R. Pole, eds., A Companion to the American Revolution (Malden, ma: Blackwell, 2000), but none mention the Treaty of Fort Niagara.

4 Taxation of the Colonies Act, 18 Geo. 3, c. 12; John Phillip Reid, Constitutional History of the American Revolution: The Authority to Tax (Madison: University of Wisconsin Press, 1993), 131–6, 143–4.

5 Statute of Westminster, 1931, 22 & 23 Geo. v, c 4, s 2. 6 See the essays by Robert Travers, “Constitutions, Contact Zones, and Imperial

Ricochets: Sovereignty and Law in British Asia,” in Britain’s Oceanic Empire: Atlantic and Indian Ocean Worlds, c. 1550–1850, ed. H. V. Bowen, Elizabeth Mancke, and John G. Reid, (Cambridge: Cambridge University Press, 2012), 98–129; Philip J. Stern, “Company, State, and Empire: Governance and Regulatory Frameworks in Asia,” in Bowen, Mancke, and Reid, Britain’s Oceanic Empire, 130–50; Jerry Bannister, “The Oriental Atlantic: Governance and Regulatory Frameworks in the British Atlantic World,” in Bowen, Mancke, and Reid, Britain’s Oceanic Empire, 151–76.

In its totality, this article reminds us to pay attention to the temporal regis- ters that guide our work, particularly in the new political history. The frame of the Age of Revolutions conventionally begins with the end of the Seven Years’ War, Pontiac’s War, and the Proclamation of 1763 and continues with such inten- sity that volatile events and their immediate antecedents tend to be prioritized over the analysis of long-term developments, such as constitutional change. For example, the 1764 Sugar Act is part of the conventional narrative of the Age of Revolutions, while historians only mention the Treaty of Fort Niagara that same year if they are emphasizing Indigenous issues, though the long-term impact of the latter is arguably far more important.3 Similarly, the rebels rejected the olive branch offered by the Carlisle Commission in 1778, and, thus, historians seldom analyze it in histories of the “Age of Revolutions” because it did not affect the outcome of the American Revolution. Yet it had a lasting impact on constitu- tional developments in the British Empire. The commission’s peace package included the Taxation of the Colonies Act of 1778, in which Parliament relin- quished its right to pass tax legislation affecting the colonies.4 That principle became a key development in the imperial constitution affecting British North America and then Canada up to the 1931 Statute of Westminster.5 While revo- lutions created the conditions for rebels to write new constitutions and thereby transform constitution making from an incremental, decades-long process into a revolutionary event, older patterns of incremental constitutional devel- opment also continued in the British world. Indeed, British imperial officials were increasingly analyzing patterns of constitutional practice in the non-Brit- ish societies that became part of the British world, seeking to identify elements that could be adapted and incorporated into British constitutional arrangements overseas and thereby avoid unrest.6

This article embraces many of the objectives of the new political history. Although addressing a conventional theme of political history – constitutional

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7 E. J. Hobsbawm, The Age of Revolution, 1789–1848 (New York: New American Library, 1962); R. R. Palmer, The Age of the Democratic Revolution: A Political History of Europe and America, 1760–1800 (Princeton, nj: Princeton University Press, 2014).

8 Lester D. Langley, The Americas in the Age of Revolution, 1750–1850 (New Haven, ct: Yale University Press, 1996); Wim Klooster, Revolutions in the Atlantic World: A Comparative History (New York: New York University Press, 2009); David Patrick Geggus, ed., The Impact of the Haitian Revolution in the Atlantic World (Columbia: University of South Carolina, 2001); David Patrick Geggus and Norman Fiering, eds., The World of the Haitian Revolution: Blacks in the Diaspora (Bloomington: Indiana University Press, 2008); Laurent Dubois, A Colony of Citizens: Revolution and Slave Emancipation in the French Caribbean, 1787–1804 (Chapel Hill: University of North Carolina Press, 2004); Charles F. Walker, The Tupac Amaru Rebellion (Cambridge, ma: Belknap Press of Harvard University Press, 2014).

9 David Armitage and Sanjay Subrahmanyam, eds., The Age of Revolutions in Global Context, c. 1760–1840 (Basingstoke, uk: Palgrave Macmillan, 2010); Suzanne Desan, Lynn Hunt, and William Max Nelson, eds., The French Revolution in Global Perspective (Ithaca, ny: Cornell University Press, 2013).

10 Christopher Leslie Brown, Moral Capital: Foundations of British Abolitionism (Chapel Hill: University of North Carolina Press, 2006); Manisha Sinha, The Slave’s Cause: A History of Abolition (New Haven, ct: Yale University Press, 2016); Christopher Schmidt-Nowara, Slavery, Freedom, and Abolition in Latin America and the Atlantic World (Albuquerque: University of New Mexico Press, 2011).

development – its approach is international more than national, arguing that a Canadian perspective of incremental constitutional change obliges us to think about constitutional pressures that were not solely elite controlled. One of its arguments is that the Age of Constitutionalism allows historians of Canada to better position British North Americans within late eighteenth- and early nineteenth-century struggles and debates over how power should be structured and limited in the world. These struggles and debates may not have resulted in revolutionary violence, but they influenced constitutional and political arrange- ments, many of which continue to the present day.

an age of constitutionalism, circa 1689–1848

In the 1990s, scholarly interest in the Age of Revolutions made a renaissance, and the number of books and articles with “Age of Revolution(s)” in the title exploded. In reviewing the literature, it is possible to identify at least four bod- ies of relevant scholarship. The first, of course, is scholarship on revolution- ary movements, but unlike the older Age of Revolution scholarship, à la Eric Hobsbawm or R. R. Palmer,7 much of the newer scholarship looks closely at political movements by subaltern groups, such as the uprising led by Tupac Amaru ii in the Andes (1780), the Haitian Revolution (1791–1804), or the Second Maroon War (1796–7) in Jamaica.8 A second line of scholarship examines polit- ical upheavals across Asia, such as in the Mughal, Safavid, and Qing empires.9 A third focuses on late eighteenth- and early nineteenth-century reform move- ments, not only for the abolition of the slave trade and slavery but also for Catholic emancipation in the British world.10 These movements adopted the

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11 Jürgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Cambridge, ma: mit Press, 1989).

12 Christopher A. Bayly, Recovering Liberties: Indian Thought in the Age of Liberalism and Empire (Cambridge, uk: Cambridge University Press, 2012).

13 Lauren Benton and Lisa Ford, Rage for Order: The British Empire and the Origins of International Law, 1800–1850 (Cambridge, ma: Harvard University Press, 2016).

14 Manuela Albertone and Antonino De Francesco, Rethinking the Atlantic World: Europe and America in the Age of Democratic Revolutions (Basingstoke, uk: Palgrave Macmillan, 2009).

15 Pasi Ihalainen and Kaarin Sennefelt, “General Introduction,” in Scandinavia in the Age of Revolution: Nordic Political Cultures, 1740–1820, ed. Pasi Ihalainen et al. (Farnham, uk: Ashgate, 2011), 1–13.

language of universal rights that revolutionaries used and redeployed for emancipation. In some places, revolution and emancipation overlapped; all of the Spanish American republics abolished slavery, with only Spain’s Caribbean island colonies continuing slave regimes. A fourth took shape in response to the writings of German sociologist and philosopher Jürgen Habermas, par- ticularly The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society, which was first published in English in 1989. This scholarship focuses on the growth of civil society, on public interaction and discourse in coffee houses, salons, newspapers, periodicals, associations such as the Freemasons, and venues and media in which people often discussed gov- ernment and politics. These public sphere or civil society forums fostered con- versations and debates, some of which were associated with political change and emancipatory movements.11

The capaciousness of the concept of the Age of Revolutions notwithstand- ing, scholars are increasingly acknowledging its limits, in part because of the unavoidable emphasis on actual armed revolutions rather than the myriad political movements that effected change without armed upheaval. Indeed, scholarship on the public sphere fits awkwardly within an Age of Revolutions frame because of its emphasis on rational discourse to address political prob- lems; revolution, in contrast, suggests an abandonment of it. Christopher A. Bayly wrote the book Recovering Liberties: Indian Thought in the Age of Liberalism and Empire.12 In Rage for Order: The British Empire and the Origins of International Law, 1800–1850, Lauren Benton and Lisa Ford analyze poli- cies designed to avoid the kind of political unrest that led to the American Revolution.13 The contributors to Rethinking the Atlantic World: Europe and America in the Age of Revolutions focus on transatlantic intellectual exchanges between continental Europe and the non-anglophone parts of the Americas.14 The historians who contributed to Scandinavia in the Age of Revolution: Nordic Political Cultures, 1740–1820 acknowledge that the region did not have revolu- tions like those in the Americas and France, yet debates about popular sov- ereignty, absolutism, constitutionalism, the concept of democracy, and the relationship of citizens to the state were widespread and transformative in Nordic countries.15 Responding to many of these scholarly trends, the legal historian, Matthew C. Mirow, whose specialty is Spanish America, writes about “The Age of Constitutions in the Americas,” and the British historian Linda

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16 M. C. Mirow, “The Age of Constitutions in the Americas,” Law and History Review 32, no. 2 (2014): 229–35; Linda Colley, “Empires of Writing: Britain, America and Constitutions, 1776–1848,” Law and History Review 32, no. 2 (2014): 237–66.

17 For broad overviews, see Jane Burbank and Frederick Cooper, Empires in World History: Power and the Politics of Difference (Princeton, nj: Princeton University Press, 2010), 219–50; C. A. Bayly, The Birth of the Modern World, 1780–1914: Global Connections and Comparisons (Malden, ma: Blackwell, 2004), 86–120.

18 Alden T. Vaughan, Transatlantic Encounters: American Indians in Britain, 1500–1776 (Cambridge, uk: Cambridge University Press, 2006); Cecilia Louise Morgan, Travellers through Empire: Indigenous Voyages from Early Canada (Montreal and Kingston: McGill-Queen’s University Press, 2017); Paul Grant-Costa and Elizabeth Mancke, “Anglo-Amerindian Commercial Relations,” in Bowen, Mancke, and Reid, Britain’s Oceanic Empire, 370–406.

Colley analyzes “Empires of Writing” and “the contagion of constitutions” in the late eighteenth and nineteenth centuries.16

All of these qualifications about the Age of Revolutions apply to early Canada; indeed, no country’s history has been more overshadowed by the American Revolution than that of Canada. But the concerns raised in this article are not specific to Canada. Rather, they are peculiarly pronounced in Canadian history. Like Mirow and Colley, I emphasize constitutions rather than revolutions as the defining characteristic of the era. To label it an “Age of Constitutionalism” includes revolution as one response to a constitutional crisis, but it does not marginalize non-violent movements for constitutional change and reform. The Age of Constitutionalism also shifts the epistemological emphasis and meta-nar- rative to an object of change – namely, constitutional reforms – and away from an extreme tool of constitutional change – revolution. Over the eighteenth and early nineteenth centuries, hundreds of propositions, petitions, deliberations, pamphlets, and treatises on constitutional matters circulated. People in many parts of the world debated how governments should be structured, what delib- erative processes were appropriate, what limits on power should be imposed on authorities, who had a right to participate in government and hold office, and what rights were guaranteed to be protected.17 In some instances, these debates resulted in a document we might call a constitution, but often they resulted in the implementation of practices that became constitutional; the abolition of slavery had profound constitutional implications in every place it happened, even when abolition happened by statute law, judicial decision, or atrophy.

The Age of Constitutionalism was an Atlantic, indeed global, phenome- non, spanning about a century and a half from the end of the seventeenth cen- tury through the first half of the nineteenth century. Not ethnically specific, it included Indigenous peoples throughout the Americas, people of African descent in Africa and the Americas, Asians, and Europeans wherever they found themselves in the world. In North America in the late seventeenth cen- tury, for example, Indigenous peoples began to reposition themselves vis-à-vis European settlers, increasingly trying to circumvent colonial officials in favour of imperial officials and, in some cases, going directly to Europe.18 Treaties that defined Indigenous–settler relations and are recognized in the Canadian courts were first negotiated in the early eighteenth century. In England in 1689,

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19 Bill of Rights 1689, 1 Wm. & M. 2, c. 2. 20 Massachusetts Charter, 7 October 1691; Michael G. Hall, Lawrence H. Leder, and

Michael G. Kammen, eds., The Glorious Revolution in America: Documents on the Colonial Crisis of 1689 (Charlotte, nc: University of North Carolina Press, 1964), 76–79; David S. Lovejoy, The Glorious Revolution in America (Middletown,ct: Wesleyan University Press, 1987), 346–8.

21 Jeffrey L. McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791–1854 (Toronto: University of Toronto Press, 2000).

22 Michel Ducharme, Le concept de liberté au Canada à l’époque des Révolutions atlantiques, 1776–1838 (Montreal and Kingston: McGill-Queen’s University Press, 2010).

Parliament passed the Bill of Rights, making into statute law the Declaration of Rights that Parliament had read to William and Mary when it asked them to ascend the throne.19 In British America, constitutionally protected rights were expanding; the Crown required the expansion of religious toleration, most nota- bly in the Massachusetts Charter of 1691.20 Internationally, Europe’s belligerents met in Utrecht to negotiate peace and a balance of power to end the War of the Spanish Succession, an attempt at a kind of international constitutionalism that continues to the present. The eighteenth-century growth of colonies reinforced governing practices in ways that settlers could argue were constitutional. The rapid expansion of print news, particularly periodicals, papers, and pamphlets, expanded both the content of political discourse and the numbers of informed and engaged participants. Debates over who was a subject and the rights inher- ing in subjecthood were intense, spilling over into a growing movement to abol- ish the slave trade and then slavery itself.

The Age of Constitutionalism allows historians of Canada to step outside the shadow of the American Revolution and examine political and constitu- tional change in light of developments elsewhere in the world. Jeffrey McNairn eloquently and insightfully analyzes the emergence of the public sphere in Upper Canada from 1791 to 1854, carefully documents the diverse ways that Upper Canadians participated in and shaped political and social discussions, and thereby challenges the idea that residents of British North America did not experience and contribute to the political debates transforming societies throughout the Atlantic Basin.21 In Le concept de liberté au Canada à l’époque des Révolutions atlantiques, 1776–1838, Michel Ducharme analyzes two dom- inant ideas of liberty in the Canadas. One he calls modern liberty, which emphasized individual liberty, and the other he calls republican liberty, which emphasized participatory, and particularly representative, government, but both within the currents of ideas that were circulating in the Atlantic world.22 As McNairn and Ducharme show, Canadians were actively involved in the constitutional debates of the era. Even though McNairn eschews the framing of the Age of Revolutions and Ducharme embraces it, scholars outside of Canada conventionally ignore their contributions. As Wim Klooster observes, “historians have long excluded Canada’s history from the Enlightenment and the Age of Atlantic Revolutions. Since both Upper and Lower Canada did not exit the British Empire when the thirteen colonies to the south did, their story

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23 Wim Klooster, “Review of The Idea of Liberty in Canada during the Age of Atlantic Revolutions, 1776–1838,” Canadian Historical Review 98, no. 1 (2017): 180–1. For an assessment of how Upper Canadian history might inform us history, see Alan Taylor, “The Late Loyalists: Northern Reflection of the Early American Republic,” Journal of the Early Republic 27, no. 1 (2007): 1–34.

24 Ann Gorman Condon, “1783-1800: Loyalist Arrival, Acadian Return, Imperial Reform,” in The Atlantic Region to Confederation: A History, ed. Phillip A. Buckner and John G. Reid (Toronto: University of Toronto Press, 1994), 184–7; Taylor, “Late Loyalists,” 4, 19–20.

was not deemed worthy of inclusion, despite the momentous rebellions of 1837–8.”23

The long eighteenth century includes the early decades of political moderniza- tion when people first began raising constitutional concerns about royal absolut- ism, questioning the relationship between individuals as subjects of a monarch or citizens of a state, questioning what rights and privileges they could expect. In some places, religious liberties shrank, such as in France with the revocation of the Edict of Nantes in 1685; in other places, they expanded, such as in the British world. Over the eighteenth century, the public sphere took form in countries throughout Europe through the rapid expansion and circulation of print, when salons and cof- fee houses became meeting places to discuss government or explore and defend ideas about freedom of speech, the press, and assembly. In the early eighteenth century, many of these ideas were considered radical. By the mid- nineteenth cen- tury, they had become quite conventional, though still contested, and societies were dealing with new political questions, such as the rights of workers, the expan- sion of the franchise, and whether to include women as members of the public sphere – issues that marked another shift in political modernization.

loyalists and the age of revolutions

The value of the Age of Constitutionalism frame does not mean driving out the Age of Revolutions perspective. It has influenced scholarship for so long, and we have become so accustomed to its tropes and assumptions, that we are often unaware of the consequences of its impact, even when profound. For his- torians of British North America, it is still important to understand the Age of Revolutions frame, partly because of its continued relevance and partly because of the distorting effect it has had on Canadian history. This section begins with a note on the constitutional and political relevance of the Age of Revolutions in Canadian history and ends with an assessment of its serious distortions for the historical analysis of British North America.

Early Canada’s political and constitutional histories have a Gordian knot that has captured the attention of scholars for decades – namely, how did the American Revolution influence political and constitutional developments in British North America and then Canada? Many attempts to answer this ques- tion focus on the legacy of the loyalists. The influx of approximately 40,000 Loyalist refugees into Quebec and Nova Scotia during and after the American Revolution had constitutional implications beyond the creation of the new col- onies of New Brunswick and Cape Breton in 1784 and Upper Canada in 1791.24

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25 David Bell, Early Loyalist Saint John: The Origin of New Brunswick Politics, 1783– 1786 (Fredericton, nb: New Ireland Press, 1983).

26 Neil MacKinnon, This Unfriendly Soil: The Loyalist Experience in Nova Scotia, 1783– 1791 (Montreal and Kingston: McGill-Queen’s University Press, 1988).

27 Campbell v. Hall, [1774] 98 Eng. Rep. 1045. 28 R. J. Morgan, Early Cape Breton: From Founding to Famine, 1784–1851: Essays, Talks,

and Conversations (Wreck Cove, ns: Breton Books, 2000). 29 C. A. Bayly, Imperial Meridian: The British Empire and the World, 1780–1830

(London: Longman, 1989).

Loyalists expected and received participatory government in the form of elected assemblies. New Brunswick’s first assembly, mandated by the gubernatorial instructions to Lieutenant Governor Thomas Carleton, met in 1786 after a rau- cous election in 1785, which was reminiscent of the revolutionary turmoil in the thirteen colonies that rebelled.25 Assemblies were called in Lower Canada and Upper Canada after the Constitutional Act mandated assemblies in each region. In Nova Scotia, Loyalist members of the legislative assembly (mlas) tended to side with longer-settled mlas from rural and coastal communities and against Halifax interests, thus reconfiguring the power dynamics of the province.26

The outlier to this pattern of Loyalists successfully remonstrating for represent- ative government was Cape Breton. Although the governor’s commission included instructions to call an assembly when appropriate, no governor ever did. Moreover, Cape Breton’s government generally distributed land on leasehold, not freehold, tenure, thereby limiting any potential electoral franchise and justifying continued executive administration. Many settlers there were Acadians or Gaelic-speaking Catholic Scots, and administrators in the colony could exclude them from elec- tions on religious grounds. Some settlers, many with Loyalist ties, complained repeatedly and vociferously about the lack of an assembly, and the government repeatedly rebuffed them. Finally, in 1816, Ritchie and Leaver, the merchant part- nership holding the government contract to operate the coal mines, refused to pay import duties, arguing that taxes authorized by an executive council ordinance were unconstitutional. Once charged, their lawyer drew much of their defence from the Proclamation of 1763 and a 1774 Grenada case, Campbell v. Hall.27 The chief justice of Cape Breton, Archibald Charles Dodd, agreed that the Proclamation of 1763 indeed applied in Cape Breton and that it mandated an assembly, thus mak- ing the import duties and any other taxes unconstitutional. The decision enraged Lieutenant-Governor George Ainslie, who refused to call an assembly, despite financial necessities. After four years of impasse, the colony was not fiscally viable, and the Colonial Office re-annexed Cape Breton to Nova Scotia in October 1820 rather than ordering the lieutenant governor to call an assembly. Cape Bretoners protested the re-annexation in the 1820s and again in the 1840s, but British officials defended their constitutional right to end Cape Breton’s separate colonial status.28

Cape Breton highlights the long-term constitutional importance of the Loyalists in muting the authoritarian turn in the post-1783 British Empire that many scholars have emphasized. Evidence from the British North American colonies with sizeable influxes of Loyalists suggests that, with the exception of Cape Breton, settlers provided the critical counterweight against amplified executive power and often challenged officials with authoritarian tendencies.29

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30 Elizabeth Mancke, David Bent, and Mark McLaughlin, “‘their unalienable right and privilege’: New Brunswick’s Challenge to the Militarization of the British Empire, 1807–1814,” Acadiensis 46, no. 1 (2017): 49–72.

31 Gwendolyn Davies, “New Brunswick Loyalist Printers in the Postwar Atlantic World: Cultural Transfer and Cultural Challenges,” in The Loyal Atlantic: Remaking the British Atlantic in the Revolutionary Era, ed. Jerry Bannister and Liam Riordan (Toronto: University of Toronto Press, 2012), 128–61.

32 While there were British settler populations in the Atlantic islands of Bermuda and the Bahamas and in the Caribbean sugar islands, the high ratio of slaves – over ninety percent in some Caribbean colonies – meant that those colonies were dependent on metropolitan protection and vulnerable to metropolitan pressure.

During the Napoleonic Wars (1802–15) and the War of 1812, for example, the New Brunswick assembly used legislation to keep the militia under civilian control, adding sunset clauses to militia legislation that required the assembly to review its timetable. In 1812, the assembly and legislative council petitioned the Prince Regent to remonstrate against the appointment of a military officer as president of the executive council, arguing that it violated the provincial constitution. The Prince Regent set aside the petition on the grounds of military exigencies. In 1814, the assembly was so opposed to what British officials wanted in new militia legislation that it threatened not to re-authorize the militia.30

Loyalists also contributed to a vibrant and expanding public sphere. Loyalist printers brought their printing presses with them and set up shop in Nova Scotia, New Brunswick, and the Canadas, producing newspapers and pamphlets, print- ing legislative records, and generally making sure that British North Americans were part of the vibrant “republic of letters.”31 In the 1780s, Loyalists also estab- lished the foundations for two universities, the University of New Brunswick and King’s College in Nova Scotia.

In all of these respects, the addition of thousands of Loyalists to the British North America colonies had significant constitutional consequences.32 As the British Empire militarized in the late eighteenth century in response to the French Revolutionary and Napoleonic Wars, and the metropolitan government tried to enhance the role of executives in the colonies, loyalists and their descend- ants were the strongest line of defence in the constitutional protection of partic- ipatory government and the establishment of elected assemblies. Loyalists, in short, were very much part of the Age of Constitutionalism, and while they may have opposed the American Revolution, they were not conservative reactionar- ies, apologists of the ministry, or quiescent followers of metropolitan attempts to expand executive and military power in the settler colonies. In these ways, early Canada’s political and constitutional history bears similarities to political movements elsewhere in the world.

The role of Loyalists in expanding and participating in representative gov- ernment in post-1783 British North America, whether through advocacy or ideological diversity, necessitates a reconsideration of the labels of Tory, reac- tionary, and counter-revolutionary that are often used to describe them. The term counter-revolutionary is narrowly descriptive, conveying what is opposed, not what is supported, espoused, or believed. Loyalists opposed the shift to

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33 Maya Jasanoff, “Revolutionary Exiles: The American Loyalist and French Émigré? Diasporas,” in Armitage and Subrahmanyam, Age of Revolutions, 38.

34 Janice Potter-MacKinnon, The Liberty We Seek: Loyalist Ideology in Colonial New York and Massachusetts (Cambridge, ma: Harvard University Press, 1983); Gregg L. Frazer, God against the Revolution: The Loyalist Clergy’s Case against the Revolution (Lawrence: University of Kansas Press, 2018).

revolution, making them counter to the revolution, but they were also counter to the political and social polarization that occurred in the colonies that rebelled, counter to many of the ministry’s policies and counter to the destruction of the middle ground of negotiation. Many Loyalists were marginal groups in their home communities – for example, the Anglican elites from New York and the Quakers from New Jersey. These groups opposed militarized revolution, and, thus, both can be called “counter-revolutionaries,” but, once resettled in New Brunswick, the label “counter-revolutionary” lost the utility it had in New York and New Jersey. Some elite Anglicans, such as George Ludlow, chief jus- tice of New Brunswick, or Jonathan Odell, secretary and clerk of the executive council of New Brunswick, were slave owners, while the Quakers who settled Beaver Harbour prohibited slavery in the community. Beyond the immediate revolutionary context, the utility of the term “counter-revolutionary” to encom- pass the political beliefs of the Loyalists dissipated rapidly. As refugees in their new homes in New Brunswick or in any of the other post-1783 British North American colonies, the term counter-revolutionary had little descriptive, much less ideological, relevance.

Militarized revolutions, such as the American Revolution, polarize and reify positions. In imperial contexts, when political tensions result in revolutions, at least three positions generally emerge: the imperial government and two sides within the colonies. In British America, the two sides were the Patriots and the Loyalists, but if we broaden our lens a little, there were also groups that did not fit into those two camps, including French Canadians, diverse Indigenous nations, and British settlers in non-rebelling colonies. The Patriots’ decision to militarily confront the metropolitan government quite literally took the ground out from under those with an interest in a negotiated outcome, particularly the Loyalists and Indigenous peoples. As an epistemological category, therefore, the Age of Revolutions risks perpetuating and normalizing that polarization, reducing the significant agents of political change in eighteenth-century British America to the American Patriots and the British government, and marginalizing others – Indigenous peoples, French Canadians, and Loyalists. When the Patriots deployed armed revolution in their dispute with Britain, they polarized previously multi-faceted political debates and eliminated the middle ground of consultation and negotiation.

Maya Jasanoff, a historian of the Loyalist diaspora, notes in an essay in the volume The Age of Revolutions in Global Context, c. 1760–1840 that, for these col- onists, the Age of Revolutions became “an age of refugees,”33 as if the Loyalists not only lost their homes but also were escorted from the historical stage that the revolutionaries controlled. That was the way the Patriots wanted it. Many of their most vocal Loyalist critics in the colonies were sophisticated and progres- sive constitutional thinkers.34 In 1774, Joseph Galloway proposed a plan of union

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35 Richard Dana Yeomans, “The Age of Constitutionalism: Crisis, Rebellion, and Dissent in Eighteenth-Century Colonial North America” (ma thesis, Queen’s University, 2018), 56.

36 Jonathan Israel, The Expanding Blaze: How the American Revolution Ignited the World, 1775–1848 (Princeton, nj: Princeton University Press, 2017), 742.

to the First Continental Congress that might have resolved tensions, with John Jay among its prominent supporters. John Adams, however, opposed it and lob- bied representatives to defeat it. That not being enough, Adams had the record of the debate of Galloway’s plan and the vote on it expunged from the record of the Continental Congress, a silencing of constitutional options.35 The polarization of debate, the marginalization and silencing of alternative voices, the mischaracter- izations of adversaries’ positions, and the pejorative labelling of opponents are all part of the politics of revolution, and all of them happened to the Loyalists during the American Revolution. As historians, we document and analyze polarization, marginalization, mischaracterization, and pejorative labelling. Numerous schol- ars have studied those who the rebels wanted excluded. They show that Loyalists were culturally and economically diverse. Many were constitutionally innova- tive and imaginative, articulate and often unflinching critics of the ministry and rebels alike, prepared to find workable compromises to resolve the constitutional impasse. Nevertheless, the rebels’ two-dimensional characterization of their crit- ics as Tories has persisted and has been uncritically adopted by otherwise serious scholars. Princeton University historian Jonathan Israel in The Expanding Blaze: How the American Revolution Ignited the World, 1775–1848, says little about the Loyalists, and his index entry for them directs readers to the Tories – “Loyalists, in the American Revolution. See Tories” – even though few Loyalists were Tories.36 One might conclude that the “expanding blaze” resulted in a discursive scorched earth.

The problem of the discursive scorched earth is not exclusive to the history of the American Revolution. It exists in scholarship on the French Revolution too. Revolutionary polarization was probably endemic in the Age of Revolutions, and unless we acknowledge this phenomenon, it will distort the past by silenc- ing alternative voices during various revolutionary stages. Recent scholarship on the 20 June 1792 march of 30,000 French citizens on the legislative assem- bly in Paris emphasizes concerns over protecting the Constitution of 1791. Conventional historical interpretations stress the economic differences of the two sides: disaffected underclasses challenging the king and economic elites supporting the king. Scholars have also connected this divide to geographic location, with more of the king’s supporters in the north and west, and his detractors in the southeast. From an analysis of petitions and addresses sent to the assembly from across France in 1792 in response to the events of 20 June, William Cormack shows that large numbers of the French populace, repre- senting a broad socio-economic spectrum, were concerned that the uprising “threatened the rule of law, individual liberty, the independence of the national legislature, and, above all, the survival of constitutional government in France.” These petitioners were constitutionalists, who “invoked constitutionalism as a middle way between the ‘despotism’ of the Old Regime and ‘republicanism’

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37 William S. Cormack, “Defending the Liberal Revolution in France: Provincial Reactions to the Parisian Journée of 20 June 1792,” Canadian Journal of History 53, no. 2 (2018): 239.

38 Dan Edelstein, “From Constitutional to Permanent Revolution: 1649 and 1793,” in Scripting Revolution: A Historical Approach to the Comparative Study of Revolutions, ed. Keith Michael Baker and Dan Edelstein (Stanford, ca: Stanford University Press, 2015), 119.

39 Quoted in Eliga H. Gould, “Revolution and Counter-Revolution,” in The British Atlantic World, 1500–1800, ed. David Armitage and Michael J. Braddick (Basingstoke, uk: Palgrave Macmillan, 2002), 209.

40 Donald S. Lutz, “State Constitution-Making, through 1781,” in A Companion to the American Revolution, ed. Jack P. Greene and J. R. Pole (Malden, ma: Blackwell Publishing, 2004), 269–80.

41 Jack Rakove, “Constitutionalism: The Happiest Revolutionary Script,” in Baker and Edelstein, Scripting Revolution, 105.

associated with political radicals.”37 Their petitions and addresses capture a much more diverse range of constitutional thought than is depicted in most accounts of the French Revolution and should serve as a caution to historians not to assume revolutionary polarization was a reflection of the spectrum of political and constitutional thought or a reflection of preferred positions. As well, one should not characterize the signers of those missives and epistles as royalists. While they recognized that the French Revolution had been necessary to achieve the Constitution, the utility of revolution as a tool of constitutional change had expired, and protecting the Constitution and the civil order it prom- ised was their priority.

The French petitioners of 1792 were counter-revolutionaries, but that was because they supported the Constitution of 1791, not because they were reaction- ary resisters of political change. In an analysis of the “scripting” of the French Revolution, Dan Edelstein notes that from 1792 to 1794 a “radical model of revo- lution emerged,” the primary goal of which “was no longer constitutional stabil- ity but rather the refashioning of the state and of society.” The goal was always “slightly out of reach” and thereby made revolution “permanent.” In Edelstein’s analysis, the “revolution now became the authority that justified revolution.”38 British Americans had feared this possibility as tensions with Britain intensi- fied in the early 1770s. John Dickinson, a prominent Patriot from Pennsylvania, articulated the danger of breaking with the British Constitution, noting that the rebels would be abandoning one “House before We have got another, In Winter, with a small family.”39 The Continental Congress recognized the problem when it authorized the states to write new constitutions, anticipating that the United Colonies might soon declare independence.40

Jack Rakove argues that during the American Revolution “constitutionalism superseded and subsumed the idea of revolution.”41 In the seventeenth century, political theorists had laid out the terms under which it was deemed legitimate to throw off a government, but they had never laid out how to create a new legitimate government in its place. This dilemma was well known in the British world. The Commonwealth after the English Civil War (1642–9) had question- able legitimacy after Oliver Cromwell died, and the English Parliament invited

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42 Rakove, “Constitutionalism,” 106. 43 Russell, Canada’s Odyssey, 454n2. 44 There is a significant body of scholarship on pre-revolutionary constitutionalism

in British America and the British Empire. See, for example, Jack P. 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); Craig Yirush, Settlers, Liberty, and Empire: The Roots of Early American Political Theory, 1675–1775 (New York: Cambridge University Press, 2011); Ken MacMillan, The Atlantic Imperial Constitution: Center and Periphery in the English Atlantic World (New York: Palgrave Macmillan, 2011).

Charles ii back as king in 1660 as a way to restore governing legitimacy as much as to restore the monarchy. The Glorious Revolution of 1688–9 allowed for the abdication of King James ii, succeeded by his daughter Mary and her husband William of Orange, without protracted civil war. The colonists were aware of these legacies, which contributed to the wariness of many of those who were breaking with Britain. At the national level, American revolutionar- ies succeeded in defining a new kind of constitution making that legitimated a post-revolutionary government.42 The us way of constitution making, how- ever, did not supersede the British way of making incremental adjustments in response to shifting circumstances – adjustments such as the Proclamation of 1763, the Quebec Act of 1774, or the Taxation of the Colonies Act in 1778.

The success of the 1787 us Constitution embedded a second process of constitution making into the political traditions deriving from European cul- tures, one that has operated parallel to the older process since the American Revolution. In the imagery of constitutional scholar Peter Russell, the Canadian Constitution, which is a derivative of the British Constitution, is an odyssey, a journey of adaptation, refinement, accommodation, and enactment, rather than the writing of a foundational document, as with the us Constitution. Using orthography, Russell distinguishes between these two ways of constitution mak- ing. A lower case “c” constitution is one that has no single foundational docu- ment, such as Canada’s, or even Britain’s, which is dated from the Magna Carta in 1215. A constitution with a foundational document, such as the United States’, is an upper case “C” Constitution.43 These two processes of constitution mak- ing operate in distinctly different temporal registers: one across decades, if not centuries, the other as an event that can be dated. Although the outcomes might be commensurable – sets of principles by which a government operates and power is distributed, limited, and held accountable – the processes are almost incommensurable, making comparative historical analyses extremely difficult, yet extremely important to do.

One of the greatest problems with the Age of Revolutions frame is that it skews scholarship on constitution making, privileging the writing of a capital- “C” Constitution and obscuring analysis of the older more incremental process of constitution making and amending. It is as if the American Revolution – and the subsequent Age of Revolutions – made the older constitutional process anachronistic, despite it being the standard up to the American Revolution.44 But revolutionary constitution making did not supersede the older process;

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45 The classic argument that the us Constitution reinforced elite interests is Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913). For an alternative interpretation, see Max M. Edling, Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (Oxford: Oxford University Press, 2003).

46 Borrows, “Wampum at Niagara,” 155–72, 256–67. 47 Jon Parmenter, The Edge of the Woods: Iroquoia, 1534–1701 (East Lansing: Michigan

State University Press, 2010), 266–73; J. A. Brandão and William A. Starna, “The Treaties of 1701: A Triumph of Iroquois Diplomacy,” Ethnohistory 43, no. 2 (1996): 209–44.

rather, it introduced an alternative. Unfortunately, the scholarly eclipsing of the earlier form of constitutionalism – with no evidentiary justification – has had the effect of limiting our understandings of the complexity of constitutional thought and practices, the forms that constitutions can take, the diverse and sometimes undefinable origins of constitutions, and, most importantly, the agents of constitutional change. Revolutionary constitution writing was gener- ally elitist, the work of a select few, with some arguing that such an approach could reinforce elite privilege.45 In the same way that historians have privileged revolutionary constitutionalism as more progressive and older incremental con- stitutionalism as reactionary, they also have implied that those older forms were more elitist than revolutionary constitutionalism. In the case of British North America, however, the story is more complex.

agents of incremental constitutionalism

Scholars of Indigenous constitutionalism in Canada have documented and analyzed how Indigenous peoples ratified the Proclamation of 1763 with the Treaty of Fort Niagara in 1764. After William Johnson, superintendent of Indian Affairs for the northern district, received a copy of the Proclamation, he called an Indigenous Council for the region where he had jurisdiction to meet at Fort Niagara in the summer of 1764. Over 2,000 people attended, representing twenty- four nations, and the resulting Council ratified the Proclamation through the Treaty of Fort Niagara, confirming a direct relationship between Indigenous nations and the British Crown, which is a key part of Indigenous constitutional rights.46 Significantly, Indigenous nations had been seeking such a relationship since the late seventeenth century. In July 1701, the Haudenosaunee negotiated an agreement with the British in Albany, New York, concerning their “Beaver Hunting Ground” both north and south of Lake Erie, and, in August, they partic- ipated in the Peace of Montreal, ending close to a century of warfare in the Great Lakes area. In both sets of negotiations, the Haudenosaunee positioned them- selves as independent of both the French and the British and engaged nation to nation.47 In 1711, a contingent of Mohawks travelled to London to meet with royal officials, as did the Creeks in 1734 and the Mohegans in 1736. In 1756, the British government appointed two Indian superintendents for North America, one north of the Ohio River and one south of the river – officials who reported directly to the metropolitan government in London rather than to a colonial

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48 See, for example, Colin G. Calloway, The Scratch of a Pen: 1763 and the Transformation of North America (Oxford: Oxford University Press, 2006). Calloway does acknowledge the importance of the Council at Niagara (96–7), but, as Borrows, “Wampum at Niagara,” 256n4, notes, few scholars do.

49 David L. Ammerman, In the Common Cause: American Response to the Coercive Acts of 1774 (Charlottesville: University Press of Virginia, 1974), 10–12, 70, 147; John Phillip Reid, Constitutional History of the American Revolution, 23–6.

50 From an American perspective, the Quebec Act was one of the “Intolerable Acts” and the British punishing rebels by giving Canadians political rights. The Quebec Act, however, also reflected shifting metropolitan policies for incorporating people into the empire who were not ethnically British or Protestant. Philip Lawson, The Imperial Challenge: Quebec and Britain in the Age of the American Revolution (Montreal and Kingston: McGill-Queen’s University Press, 1990).

governor. Seen against Indigenous activism since the late seventeenth century and the British responses to it, the Proclamation of 1763 was not just a ministe- rial reaction to the conclusion of the Seven Years’ War and then Pontiac’s War, as is often suggested. Rather, it reflects a response to decades of Indigenous advo- cacy of their own interests, their own understanding of British power dynamics, and their relation to them.48

The Quebec Act of 1774 was similarly not just a top-down decision but, rather, a reflection of a decade of interactions with French Canadians. Contrary to American rebel sensibilities, Parliament did not pass it as the fifth of the Intolerable Acts – as the Patriots designated the Coercive Acts plus the Quebec Act – to irritate them.49 Rather, the Quebec Act reflected an extended process of negotiation between the French Canadians and the British govern- ment, beginning at least as early as the Capitulation of Montreal in September 1760, when the governor general of New France, the Marquis de Vaudreuil, formally surrendered to General Jeffrey Amherst. The surrender included protection of French and Indigenous property rights, civil law in the form of the Coutume de Paris, freedom of religion for Catholics, and protection of French government documents, which were critical to documenting French Canadian rights. From then on, French Canadians assiduously protected their rights, and British officials sent to govern Quebec worked to sort out viable governing practices. When seen from the perspective of the decades after 1760, the Quebec Act was not a gift to the Canadians, nor intended as an irritant to the Patriots (though it indeed irritated them) but, rather, reflected a decade of negotiated compromises and adaptations, with give and take on both sides.50

One of the deceptive qualities of constitution making in the British American colonies is that documents issued from London – a proclamation, a parliamentary statute, a commission, or instructions to a royal office holder – can be seen as unilateral decisions handed down from the imperial centre. But British imperial governance was highly reactive, and these decisions were often in response to grassroots advocacy that had often occurred over years, if not decades. Occasionally, a decision came from on high, as with the decision to unite Upper and Lower Canada in 1841 as the United Province of Canada,

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51 Benton and Ford, Rage for Order, 56–84. 52 Trevor Burnard, “Placing British Settlement in the Americas in Comparative

Perspective,” in Bowen, Mancke, and Reid, Britain’s Oceanic Empire, 407–32.

but, even then, the recommendations of Lord Durham were qualified by ongo- ing French Canadian activism and English Canadian support, including the governing partnership of Louis-Hippolyte Lafontaine and Robert Baldwin and the winning of responsible government in 1848. But, more often, impe- rial policy from the ministry and parliament reflected responses to sustained advocacy, and, thus, some constitutional developments were indeed from the bottom up.

Since at least 1778 and the failed Carlisle Peace Commission, the British tried to curb unrest and offset dissent with some form of compromise. The American Revolution had become a costly mistake caused by ministerial and parlia- mentary intransigence, as many Loyalists had explained. While the Taxation of the Colonies Act of 1778, promising not to tax the colonies directly through Parliament, came too late to quell the revolution in thirteen colonies, it did remain a part of the constitutions of the British American colonies. Parliament passed it in response to the demands of the colonists. The decision to appoint a governor general in 1786 came about in part because Loyalist constitutional thinkers, such as William Smith, insisted that the metropolitan government proactively plan for colonial growth and future cooperation among the colonies. After the British acquired numerous new colonies and territories during the Napoleonic Wars, they struggled to find orderly ways to incorporate non-Brit- ish peoples, a variation on the challenges they faced in North America after the Seven Years’ War. After 1815, they increasingly used royal commissions of inquiry to gather information from all sectors of societies and to recommend changes that would head off tensions. Royal commissions became a distinctive part of British governing practices in the colonies, a short-term royally consti- tuted body to investigate problems, one that operated between the litigiousness of the court system and the timetable of assemblies and that could make recom- mendations for constitutional adjustments.51

The challenge of balancing an old settler empire and an empire of conquest forced constitutional accommodations. Yet, in the British North American colo- nies, that shift was resisted in the mid-eighteenth century. Indeed, in the 1760s, Benjamin Franklin had advocated that the British focus on a settler empire of ethnically British subjects in temperate zones, not one with people of colour.52 Constitutional adjustments to accommodate non-British subjects were among the flashpoints leading up to the American Revolution and, to some extent, marked a transition between an imperial constitutional system that was struc- tured primarily for white settlers and one with “vernacular constitutions” that reflected adjustments for Indigenous populations, non-British settlers, and the peculiar circumstances in which British subjects found themselves, such as in Newfoundland where landholding and agriculture could not be the basis for the franchise. This constitutional transition is an important part of the new political history and central to the Age of Constitutionalism.

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acknowledgements

While writing this article, I benefited enormously from discussions with Colin Grittner, Adam Nadeau, and Richard Yeomans and from the comments pro- vided by the Canadian Historical Review reviewers. This article is dedicated to the memory and legacy of Robert A. J. McDonald (1944–2019) who conveyed his passion for Canadian political history to many of us.

elizabeth mancke is professor of history and Canada Research Chair in Atlantic Canada studies at the University of New Brunswick.

elizabeth mancke est professeure d’histoire et titulaire d’une chaire de recherche du Canada en études du Canada atlantique à l’Université du Nouveau-Brunswick.

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