Today’s guest post comes from Jordan Fansler, who received his Ph.D. from the University of New Hampshire at Durham in May 2015. The following is based on his dissertation, “A Serious and Jealous Eye: Federal Union in New England, 1775 – 1821.”
States’ rights looms large in discussions of both historical and contemporary American politics and its federal union. For good reason, the ante-bellum states’ rights movement of the South is often the first to come to mind, but such a narrow focus does not do justice to the topic as a dynamic historical phenomenon, nor does it provide adequate context for the more modern manifestations of states’ rights movements. In the early republic, New Englanders promoted their own brand of states’ rights, to protect a type of near-sovereignty they attributed to their legislatures, as the best way to promote their interests and shield individuals from distant oppression.
New Englanders’ states’ rights movement was a function of their concept of union, or empire before that, which in turn was informed by a mix of experience, tradition, and circumstance. New Englanders had gotten used to themselves as a group apart for at least the previous century. Geography and rival colonial powers saw to that, thanks to New Amsterdam and New France in the seventeenth century, as well as the general homogeneity of the region in ethnicity and religion of its colonists. Benjamin Franklin’s famous “Join or Die” illustration depicts New England (N.E.) as a single unit alongside other colonies depicted individually. The British Ministry can be said to have recognized New England as an entity, and the proverbial head of the revolutionary snake, when it looked to cut it off entirely at the Hudson River in 1777, rather than the parallel Connecticut River, which runs through the heart of New England.
The sense of distinction manifested itself in a number of autonomous acts at the state and regional level. The 1745 siege of Louisbourg, a French fortress contemporaries considered impregnable, was a largely colonial affair which New Englanders considered an excellent show of their abilities.[1] Similarly, the famous attack on Ticonderoga was authorized by the Massachusetts General Court, made up of New England militia led by Benedict Arnold, with an independent force of Vermont’s Green Mountain Boys led by Ethan Allen, to capture guns and prevent the strategic fort from serving as a staging point for raids on New England’s backcountry. Beginning in December 1776 and continuing intermittently throughout the war, the New England states met in an informal association known as the Committee of Eastern states and other similar names. Cut off from the advice of Congress by the occupation of New York, threatened militarily, and beset by fiscal woes, the New England states met without consulting Congress and took up issues from price controls, to Rhode Island’s occupation, to improving post roads to facilitate communication. As they arguably took up such continental topics as defense strategy and economic regulation, the extra-legal meetings were enough to catch the “serious and jealous eye” of the Congress. Congress allowed the meetings to continue, and in doing so reserved the right to pass judgement on subsequent meetings. New Englanders in Congress argued they were well within their rights to collectively discuss matters of local importance if consulting Congress were impractical, just as counties in a state might improve a road without threatening the superiority of the state in such matters.
These acts were expressions of the blend of self-determination and self-interest that characterized the near-sovereignty New Englanders envisioned for their colonial-turned-state legislatures. The eventual states exercised many of the powers key to establishing sovereignty, such as administering justice and raising taxes. The burden of directing their defense was primarily shouldered by the union, rather than the states, though the states did occasionally exercise that power as noted above. However, diplomatic powers, the ability to treat with foreign nations as equals and decide matters of war, peace, and alliance, what Eliga Gould has recently described as “treaty worthiness,” were exclusively the domain of the Congresses rather than the states.[2]
This delineation of powers came about through practical experience, but it was promoted during the constitutional crisis preceding the Revolution as the surest way to avoid abuses of individuals liberties. In 1768, the Massachusetts House of Representatives was arguing against gaining representation in Parliament, as “it will forever be impractical that [American colonies] should be equally represented there,” instead looking for official recognition of the colonial legislatures as the most effective form of representation and protection of rights and interests.[3] As the crisis turned into a revolution and the colonies first began to take up autonomous governments, New Hampshire’s leaders repeatedly emphasized the importance of tax collection, providing jury trials, and the administration of justice as the fundamental powers of good government, balanced with an obligation to “full and equitable representation.”[4] In all these cases, New Englanders acknowledged that the colonial/state governments occupied a distinct place within a federal or imperial system. Given their powers and obligations, the states were arguably the most important features of that system in terms of ensuring the rights of the citizens, and that is why their powers would be jealously guarded in the early Republic, but they were always a part of a greater governmental system, enjoying near- rather than full sovereignty.
New England’s strain of states’ rights shared many aspects common to that of other movements. It was, like the others, a movement that focused on securing the liberties of individual citizens against threats. However, it tended to be more defensive than active, in that it looked to preserve the powers of the states more than to limit the power of the national government. The states were quicker to petition the federal government to amend or repeal unjust laws, than to actively declare them unconstitutional, and therefore did not embrace nullification.[5] It was born out of a distinct regional identity and as such may not have been as easily exported to other newer states as other brands of states’ rights. Its influence waned alongside the region as a whole, in large measure due to the failure of the Hartford Convention of 1814. It may not have had the impact of the Southern version, but New England’s states’ rights movement brings added nuance and contingency to the discussion from a formative period.
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[1] Both James Otis of Massachusetts and Stephen Hopkins of Rhode Island expressed local pride regarding the siege and emphasized its strategic importance to the larger British war effort. James Otis, “The Rights of the British Colonies Asserted and Proved,” 1764; Stephen Hopkins, “The Rights of Colonies Examined,” 1765. Both are reprinted in Pamphlets of the American Revolution, 1750-1776, Vol. 1: 1750-1765, ed. Bernard Bailyn (Cambridge: The Belknap Press of Harvard University Press, 1965).
[2] Eliga H. Gould, Among the Powers of the Earth: The American Revolution and the Making of a New World Empire, (Cambridge: Harvard University Press, 2012).
[3] Massachusetts House of Representatives, Circular Letter, 11 February 1768. A transcript is available online at the Avalon Project, Yale Law School.
[4] Matthew Thornton to Josiah Bartlett and John Langdon, 1 September 1775, The Papers of Josiah Bartlett, Frank C. Meyers, ed., (Hanover: University Press of New England, 1979). General John Sullivan likewise wrote at length of the importance of representation to avoid tyrants and abuse. Sullivan to Meshech Weare, 12 December 1775, Letters and Papers of Major-General John Sullivan, Continental Army, 3 vols. (vols. 13-15 of Collections of the New Hampshire Historical Society), Otis G. Hammond, ed., (Concord, NH: New Hampshire Historical Society, 1930-1939).
[5] To be sure, there were New Englanders who asked for nullification, not least of the 1807 Embargo, and states, such as Massachusetts, stated the belief that the Embargo was invalid and unconstitutional, but just as often asserted that the remedy was through federal channels and petitions rather than claiming a power of judicial review for the states, as occurred elsewhere. See James M. Banner, Jr, To the Hartford Convention: The Federalists and the Origins of Party Politics in Massachusetts , 1789-1815, (New York: Alfred A. Knopf, 1970)
The Junto 
Jordan, thanks for your excellent and thought provoking post. I’m intrigued that New England regionalism seems to pop up in this post as much colonial/states’ rights. You show many examples from the 18th century of coherent and coordinated action of New England writ large. I’d also mention Neal Dugre’s work, which looks at New England’s relative institutional unity during the 17th Century. And one of the things that always struck me about the Hartford Convention was the assumption of interstate coordination that the leaders presupposed, which looks different to me than the VA/KY Resolutions, or SC Nullification, and even the way secession itself went down, which all unfolded essentially one state at a time. To try and put this in question form, I’m wondering to what extent, if at all, do you think New England states’ rights exists apart from NE regional exceptionalism?
Mark, that’s a good question, and your remarks hit the nail on the head as well. You correctly identify the regionalism that is recurrent throughout the post. I believe that they, the New England states’ rights and its regional exceptionalism, are intimately related. For that reason, you see both fade after the watershed Hartford Convention. The NE exceptionalism and regional cooperation is something I repeatedly encountered in my dissertation which takes the longer view from 1775 through Maine’s Admission Crisis (aka the MO Compromise). Their states’ rights philosophy was not dependent on the region for its existence, but the relationship does underscore the degree to which New Englanders were not thinking of fully sovereign states in the traditional sense, while at the same time they accorded states a great deal of autonomy and a key role in providing the services and protections that good government was meant to offer. The states therefore, were very much their own individual entities which were capable of acting on their own interests all alone, especially during the Confederation Period (Rhode Island and Connecticut, I’m looking in your direction…), whereas, in the Federal Period and during times of war it maximized their influence and effectiveness to band together, and they banded together in what was a (culturally and geographically) natural and established grouping by the mid-18th century. I think that pre-established unit of New England did help differentiate the movement from the South, which was more state-by-state as you indicated and allowed it to creep across the continent as necessary. New England by contrast appeared increasingly restricted, static, and ineffective on the national stage. I hope this was clear- I’m happy to go more in-depth here or elsewhere.
Fascinating stuff. Thanks for the thoughtful response!
Jordan, what impact did the communal nature of New England local government (in this case the New England Town system and the high usage of direct democracy Town Meetings) have in their approach to regional government and rights?
Thanks, Alex. The way I see it, the direct democracy and high levels of representation in the colonial legislatures are one of the reasons why they put so much stock in good governments being responsive, accountable, and physically close to the citizens they served. This became an issue in New Hampshire’s and Massachusetts’ backcountries as the revolutionary governments were not always deemed adequately representative and led to revolts on a town-by-town basis. The most extreme case of this was, of course, Vermont’s separation from New York and New Hampshire.
Thanks for a great article, Jordan. Following on in a way from Mark Boonshoft’s question above about the relationship between New England states’ rights and New England regionalism, could you sketch out what you see as distinctive to New England in this story? Is it that relative regional cohesion? From what you’ve laid out here about New England ideas of Union, it seems New Englanders would find a lot of common ground with other colonists and revolutionaries: they were hardly the only ones to guard jealously their legislatures; Pennsylvania outshone them in the push for “popular” government; and there were plenty of others who thought that the severe limitation of federal power in the Articles of Confederation was a great idea.
And how do you reconcile this New England “states’ rights” with the fact that the region contributed a few prominent voices for a stronger federal government, and then became a Federalist bastion in the Early Republic?
Are we talking about “states’ rights” in a constitutional way that might be familiar to people in the nineteenth century, or is this a slightly different story of “the rights of New England,” that owes more to the experience of colonies in an empire, than of states in a federal system?
Thank you for some good observations and questions. To start, I will say that part of the reason I chose to look at New England for my dissertation, which looks at the period from 1775 through 1821, is that within that period in this (relatively) small region there is at least one example of pretty much any approach to union and state-federal interaction possible, including secession attempts, vigorous commitment to union, created states, failed states, alternative unions, and so on and so forth. In that light, it is no surprise that there are common and familiar elements to be found throughout the nation, and it was my intention to include themes that would resonate elsewhere, and more nationally.
Within the purview of this post, I would point to the regional cohesion as the most prominent feature that makes it distinct, certainly. There would also be a lot of common ground shared with other areas, in both the motivations and the resulting philosophies regarding states and the union. Naturally, protection of interests was common to all, the same way most states had frontiers with hostile neighbors to worry over. I would not say that the factors involved are unique to New England, or anywhere for that matter, more a matter of the degree.
New Englanders were not opposed to this either. They believed their concept of the union should be held by everyone else concerned, whether it was Parliament or the other member-states. Their approach to union was not self-consciously insular. At its most basic, they saw the states as the key institutions, the lynchpins of the federal system. A state’s role was to protect the rights of the citizens while exercising the powers that required the most responsiveness and accountability because they could be accountable more readily than an unwieldy national government. This was certainly a legacy of their colonial philosophy and the distant imperial center which was carried over into the new nation, and as a result some of the reason New England states’ rights failed in the nineteenth century was because of it remained colored by an outdated philosophy in that sense.
It should also be noted that the emphasis on the states took the form of positive prescriptions of their duties, and not necessarily negative proscriptions on the powers of the national government. It was not entirely incompatible that they should favor a strong national union, especially as the Articles proved woefully inadequate to their duties of interstate coordination and protecting the international standing of the young nation.
There was also an axiom that appeared repeatedly throughout New Englanders’ discussions of union that their interests as member-states were shared by their closest neighbors and less so by other states. It was a function of geography and shared cultural experience, and the assumption was that other states in other regions had the same experiences with their neighbors. It was not until developments of the early nineteenth century that geographic proximity became less important to New Englanders when approaching national political matters.
I would (winkingly) add regarding the Pennsylvania Constitution that it was drafted in part by Thomas Young, a New Englander who tutored a young Ethan Allen and was in Boston during the early phases of the American Crisis, so maybe Pennsylvania has more New England in it than appears at first glance.
In any case, I hope this helps clear things up and answers some of your questions.
It certainly does, thanks. And thanks again for sharing your work with us.
that’s cool