The British Empire comprised a vast and sprawling hierarchy of office built from Crown commission upon Crown commission.
This generative activity - the formal empowering of office and instructing its performance - was the constitutional heartbeat of Empire and made it a massive and durable sphere of prerogative (for this was how the British Empire was largely run throughout the early modern period).
The Hanoverian King, like his Tudor and Stuart foreÂbears, was the repository of prerogative and kingship was the foremost emÂbodiment of office that his subjects were enjoined to emulate. His political body was virtuous, at once imperial ruler, the supreme magistrate, law-giver, and paramount landowner, and the personification of the imperial state in whose name and by whose warrant all forms of constitutional authority were exercised abroad. Prerogative was the wellspring of the imperial office-holding complex, the flow of authority running from the King downwards into narÂrower and narrower channels of specific officers on the seas and across them to all the reaches of empire. Office situated the function and agency of indiÂviduals, organising them relationally as well as individually.[1030] Just as it empowÂered, office also called to obedience and duty as well as the virtuous pursuit ofKoninklijke brill nv, leiden, 2020 | Doi:io.ii63/978900443i249_oi6
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the common good, the idealised end that early modern usage invariably framed in the language of patriotism and piety. Office encompassed positions and modes of thought that would be separated today. The conjunction of the legal, religious and ethical might strike the modern eye but it did not enter the conÂsciousness of those who were doing it in their time.
By the early 1760s, statutes of the imperial parliament were issued to fineÂtune the provisions of Atlantic mercantilism and, if increasingly controversialÂly, to provide for the collection of revenues abroad.
Instruction rather than legislation or proclamation, however, was the primary mode by which London exerted control over its American colonies, and their systems of distributing lands, through officeholders. Instructions were private orders carrying adminÂistrative provisions issued from the king to officeholders. By contrast, proclaÂmations of all sorts - military and gubernatorial as well as royal - issued at this time and were known to do no more than bring attention to extant laws and forms of authority, however. Colonists grasped this distinction only too well. â€?There are Liberty Boys at Detroit', one commanding officer reported to the commander-in-chief, â€?as well as elsewhere, who if they are talked to about the King's Proclamation for trade will readily answer that it is not an Act of Parliament'.[1031] [1032] As this retort showed, unwashed parts of the colonial community well understood that the Indian provisions of the Royal Proclamation 1763 - which will be central to the concern of this chapter - lacked any inherent legÂislative effect.The Royal Proclamation 1763 announced that colonial Governors were not to issue patents for land still in the occupation by Native American communiÂties and that land cessions, or treaties, were first to be obtained through a pubÂlic procedure overseen by the offices of the Indian superintendents. By 1763 there were two superintendencies, a northern one headed by the charismatic Sir William Johnson (whose primary constituency was the Iroquois League) and southern one now under John Stuart (the Cherokee and Creek). From as early as 1754,[1033] a year before taking up the newly created superintendency,[1034] Johnson had been protesting on behalf of the Mohawk about the issue of patents for lands in excess of that actually ceded or otherwise in colourable circumstances. Fraud and deception hovered about a practice that he reported as giving rise to considerable Indian disaffection and that, if unaddressed, threatened the stability of their military support.
The Royal Proclamation put an apparent public stop to any continuance of this practice. Technically this had occurred already, the practice having been halted two years before by circular instructions to colonial governors (12 DeÂcember 1761). These issued to â€?the Governors of such of your Majesty's Colonies upon the Continent of North America as are under your Majesty's immediate Government and where the property of the Soil is in your Majesty, forbidding them to pass Grants of or encourage settlements upon any lands within the said Colonies which may interfere with the Indians bordering thereon'.[1035]
Those instructions had been drawn up further to an Order in Council (23 November 1761).[1036] The recitation to the Order in Council reproduced substanÂtial extracts from a Report by the Board of Trade (21 November 1761) in which the Mohawk grants had been identified as particularly troublesome. The exÂtract showed the Board calling the King's attention to â€?the Causes of Complaint which, our Indian Allies had against us at the commencement of the troubles in America, and which not only induced them tho' reluctantly to take up the Hatchet against us and desolate the Settlement on the Frontiers but encourÂaged our enemies to pursue those Measures which have involved us in a danÂgerous and critical war'. The Board spoke of â€?the Cruelty and Injustice with which they had been treated with respect to their hunting grounds, in open violation of those solemn compacts by which they had yielded to us the DoÂminion, but not the property of those Lands'. Its report made clear the associaÂtion of Indian complaint with the patenting of unceded lands, warning that â€?the granting Lands hitherto unsettled and establishing Colonies upon the Frontiers before the claims of the Indians are ascertained appears to be a measure of the most dangerous tendency'. The report upbraided previous govÂernors of the province, noting that â€?independent of what regards our ConnecÂtion with the Indians the Administration of the Government of New York has in reference to granting of Lands in general been very exceptionable and has held forth a very bad example to their Successors'.
The Order in Council reÂquired â€?the Lords Commissioners for Trade and Plantations do prepare Draught Instructions proper to be sent with respect to the first point of granting Lands, as well to the Governor or Commander in Chief of the Colony of New York, as to the Governors or Commanders in Chief of all other His Majesty's Colonies on the Continent of America where such grants interfere with the Indians borÂdering on those Colonies'. These were the Instructions issued on 12 December 1761.Instructions were legally the private orders of the king to the governor as to the deployment of the powers conferred by his commission. These powers deÂrived from the prerogative, which governors of colonial America were required to protect from encroachment by the colonial assembly. These assemblies in turn and typically, regarded instructions as a secretive imperial practice that usurped their public and legislative role. On this occasion, however, the circuÂlar instructions addressed the privacy of instructions. It set out â€?our further will and pleasure that you do forthwith cause these our instructions to you to be made public, not only within all parts of our said province inhabited by our subjects, but also amongst the several tribes of Indians living within the same, to the end that our royal will and pleasure in the premises may be known and that the Indians may be apprised of our determined resolution to support them in their just rights and inviolably to observe our engagements with them'.
These instructions operated prospectively but they did not (because they could not) void those patents that had issued already, an early observation as to the Proclamation's effectiveness made by a distinctly underwhelmed JohnÂson in December 1763.[1037] Instructions spoke to the exercise of delegated preÂrogative powers and these held inherent legal limitations of a sort that coloÂnists also grasped well for all their cavilling about the use of instructions as a usurpation of their assemblies' legislative role.
Prerogative alone could not tax, legislate generally or as to create new penal offences, and it could not void land patents issued by the Crown's governors under seal. London's preference for prerogative rankled, but by the early 1760s the colonial assemblies were adept at its manipulation and in staging confrontation with governors around it, on matters of appropriations especially. The temperature of these jockeying and highly localised politics of prerogative and office was raised considerably with passage of the Stamp Act (1765). These politics, however, were not merely parochial even before the Stamp Act crisis, their impact extending continenÂtally to undermine British imperial interests at large, not least in the stability of military alliance with the powerful First Nations of the interior.This chapter begins with an exploration of the feudal prerogative as the leÂgal basis for imperial control of land titling in North America during the secÂond quarter of the eighteenth century. As the colonies grew and became comÂmercially successful, there appeared an increasingly more concerted push towards centralised control of land policy within as well as across the colonies. Prerogative and, from it, office supplied the wherewithal. The chapter then proceeds to identify Sir William Johnson as an adept and assiduous practitionÂer of office. In his capacity as northern superintendent, Johnson developed a dim view of the limitations of the royal proclamation as an instrument for faÂcilitating any colonial policy. He also expressed unhappiness with the impediÂments he saw as preventing inequitably dispossessed individuals from bringÂing their claims into colonial courts. Finally, having established the extent of disorder that cut across the whole frontier in Johnson's time and the crucial if diminishing scope for the deployment office and prerogative in such a frame, this chapter provides an analysis of two of the more controversial land patents in the province of New York's Mohawk country in the middle decades of the eighteenth century: the Kayaderosseras and Canojaharie Patents.
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