States of Union: Family and Change in the American Constitutional Order

3. Family at the Birth of the American Order

Plainly, English law aimed to structure and influence the forms and functions of family in ways that preserved key aspects of the existing order. What was happening in North America was something quite different. This chapter examines new relations between family and the emerging order in the British colonies of North America. We’ll look at family as a social institution and as a political metaphor or idea. My claims are essentially these: even before Blackstone wrote, conceptions of family were at the center of arguments of political authority and obligation in Britain. These conceptions tended to coincide nicely with legal rules that regulated English families. In North America, however, families began to look and act differently. Subtle shifts in the forms and functions of (real) families in North America helped engender basic changes in New World ideology, especially with respect to authority and obligation. The shift in ideology pertained to authority and obligation not only within families, but also in the larger colonial polities. In the latter venues, the ideological shift played an important role in reimagining the relationship between England and her colonies in NorthAmerica. In time, it would spur the colonies’ separation from the mother country and eventually the establishment of substantially new political institutions. Thus, sometimes explicitly and sometimes not, assumptions about the forms and functions of family were at the heart of radical political change in British North America. But if republican families helped to create a new order, they would eventually be put to use to preserve it in ways that would both resemble and deviate from the families of England. Seventeenth-CentUry engliSh PolitiCal thoUght In the century before Blackstone, one familiar model for the English constitution and politics was distinctly familial. We’ve already seen the ways in which 3 family at the Birth of the american order faMily at the Birth of the aMeriCan order 63 the legal regulation of the social institution of family in England was patriarchal. Explicitly patriarchal conceptions were also present, pervasive even, in English political thought by the dawn of the seventeenth century, with the accession of James I, in whose reign the British colonization of North America commenced.1 The systematic perfection of the political theory of patriarchy appeared forty-five years after James’s coronation, in Robert Filmer’s defense of absolute monarchy.2 Filmer’s strategy was to ground political authority in tradition and nature and hence to protect it from assault by upstart Parliamentarians, social contractarians, and libertarians. What could be more traditional or natural than to link politics to the all-but-ubiquitous institution of family? Drawing on the Bible—another traditional and seemingly natural source for justification—Filmer claimed that “if we compare the natural duties of a father with those of a king, we find them to be all one, without any difference at all but only in the latitude and extent of them.”3 Moreover, said Filmer, political authority was essentially genealogical in character; in fact, it grew out of a lineage running ultimately to Adam. Filmer described the relationship as follows: “Kings are either fathers of their people, . . . or usurpers of the rights[s] of such fathers. . . .” He explained: “It may seem absurd to maintain that kings now are the fathers of their people since experience shows the contrary. It is true, all Kings be not the natural parents of their subjects, yet they all either are, or are to be reputed, as the next heirs [of] those progenitors who were at first the natural parents of the whole people.”4 What this entailed for the scope and character of the king’s authority was axiomatic, precisely because the scope and character of paternal authority in the family seemed so self-evident. Kings “in their right succeed to the exercise of supreme jurisdiction. And such heirs are not only lords of their own children, but also of their brethren, and all others that were subject to their fathers.” Lest there be any question on the matter, Filmer insisted that the king—whether he rose to his station as the “true heir” of the father of the people, by usurpation, or by election—possessed “the only right and natural authority of a supreme father. There is, and always shall be continued to the end of the world, a natural right of a supreme father over every multitude, although, by the secret will of God, many at first do most unjustly obtain the exercise of it.”5 Thus, if...