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Revolutionary Consent

What the public life of American colonists can teach us about politics

Barbara Clark Smith

8 Colonial Americans were less free than we are, and in countless ways. Their political theories accepted a lack of freedom as normal and often desirable. Their society promoted and protected the enslavement of African, African-American, and Indian women, men, and children; encouraged the free poor to submit themselves to years of legal servitude; bound many youths to long apprenticeships; and expected women of every social class to enter the potentially lifelong bonds of marriage, in which they would enjoy few rights to property, the earnings of their labors, or a public voice of their own.

When it came to making decisions about the policies of government or framing legislation for their society, even those free white men who were blessed with some property, skills, and independence were seen as having limited competence at best. One cliché of British North American politics ran like this: "A cobbler in his Stall can easily tell whether the Nation is well or ill governed." But the people who said that tended to be gentlemen, and by praising the cobbler they implicitly emphasized their own, superior capacities. (If even the cobbler could tell, then educated members of the elite were surely qualified to criticize government policies.) Besides, that was the relatively generous view of cobblers. There was another saying that was also familiar in British North America and that showed less respect for the humble artisan's political ability: certain men should govern and think about government, but "a cobbler should stick to his last." Even the discussion of political competence, let alone the discussion of public policy, belonged in the hands of the educated, privileged, undoubtedly well-shod few.1

Shoemakers and other tradesmen did find opportunities in American society, as did the great many farmers who owned at least a bit of land. But the common man's comfort and opportunity did not routinely or easily translate into substantial political say. For the most part, in most places, the power of provincial government resided in the hands of a narrow elite: in southern colonies, a planter aristocracy, elsewhere a mix of prosperous landholders, well-to-do merchants, traders, and professional men.

These people accepted social and political inequality and claimed it had been established by God. How different the America of the 21st century, the century we are now entering, illumined by ideals of equality, humanity, diversity, and participation. How different, indeed, the 19th century, when slavery was attacked and marriage modified; when African-Americans and women reached for a political voice; and when propertyless free men in most states of the nation acquired the vote. When a mechanics' union campaigned for workingmen's interests in 1828, it was a signal advance for cobblers and their kind. Above all, by the 19th century America had discarded monarchy in preference for government of, by, and for the people. Who could question that this was a radical change, or that people had gained important freedoms during the Revolutionary era and the transformative years that followed?

And yet there existed in colonial America elements of liberty, forms of participation in public affairs, that later generations would not experience. Put differently, I want to raise the possibility that some (not all) colonial Americans were not so much less free than succeeding generations as differently free. Their liberty is not adequately measured by 19th- century ideas and institutions or by later centuries' often one-dimensional celebration of the Revolution.

What happens if we view colonial Americans without being certain that the freedom they lacked was more important than the freedom they—or at least some of them—had? What if we suspend the certainty that being subject to the British crown was necessarily (in every way and for everyone) less than being a citizen of the United States? To do that is to question the belief that what is delivered or at least promised under the aegis of the American state, on the American continent, can be neatly identified with human freedom, tout court. The promises of American citizenship are not to be despised, and the rights of citizenship are not so secure or universally enjoyed, even in U.S. society, as to be taken for granted or belittled. Still, without disparaging the rights of citizens of the United States, I want to explore the sort of freedom that many British subjects in America knew—and the sort of Revolution that they waged, in some part at least, on its behalf.

*  *  *

One way to trace liberty is to take note of occasions when people consented to those who governed them. Most free white men of the 18th century enjoyed the right to vote for a representative who sat in the lower house of the provincial legislature. As some saw it, this amounted to consent and participation enough. Once voters had voted, the argument ran, the people's role was to obey the laws that were passed, pay what taxes were levied, and abide by the decisions of the court system that upheld the statutes. Thus, in 1768, the Rev. George Micklejohn of North Carolina explained how consent established the moral grounds for the binding force of laws passed by elected representatives:

We not only yield our consent before-hand to whatever laws they may judge it expedient to enact, but may justly be said to have had a principle share in enacting them ourselves, inasmuch as they are framed by their wisdom, and established by their authority, whom we have appointed for that very purpose.

Micklejohn's logic seems pertinent to us because it is this act of consent, now enjoyed by women as well as men, the poor as well as the propertied, that frames our own thinking about our relationship to government. We want and expect to consent "before-hand," choosing known candidates who espouse known policies and who do their best to enact those policies when they reach office. Such expectations for consenting before policies are made leave us in some discomfort when the rush of events requires our rulers to act in the absence of prior consultation. We have, admittedly, acknowledged their wisdom. Still, we prefer to avoid the experience of being reduced to mere spectators of the state. In normal times, in the absence of emergency, we certainly expect to enjoy prior consent: we want to have a voice "before the fact" of government action. We are less accustomed than colonial Americans were to thinking of our policymakers as better or wiser than us, or born to rule over us.

Paradoxically, we may be more accustomed to doing what they tell us. The colonists, fewer of whom could vote, and all of whom were supposed to defer to the judgment of their representatives, nonetheless assumed a capacity to consent to law or withhold consent "after the fact." Indeed, Micklejohn's position was notably debatable by 18th-century standards. He preached before the governor of the colony and some 1,400 assembled militiamen, a group that had gathered precisely because hundreds of North Carolina farmers disputed the notion that they were obliged to submit to decisions of the legislature. They did not feel obligated to pay taxes levied by their representatives or to allow the court of law in their county to bring suspected criminals to trial. Some of these farmers, too, had had the opportunity to vote for representatives to the provincial assembly. Yet they apparently believed that they had not thereby consented to its future acts; or else that such consent was insufficient to make the law binding; or perhaps that, having given consent before, they might go on to withdraw their consent afterwards. These farmers were unusual in the extent of their disaffection from provincial government, but not in many of their basic tenets and assumptions.

Their position won sympathy from many New Englanders, who heard about it in the press and elsewhere, and from time to time colonists in every province acted according to the same principles, as if obedience to the law was in some respects optional rather than mandatory. Throughout the colonies, people responded to the official summons of authorities selectively; they routinely evaded or mitigated various laws, not infrequently challenged courts, and openly disobeyed magistrates who sought to inform them of what the law required.

Generally speaking, such colonists did not seek a wider suffrage or increased representation in the provincial body. Instead, ordinary men tended to assume that whether they had a voice in the law's enactment or not, they were yet entitled to a voice in the law's execution. They assumed not only the right to be represented, but also the right to be present on key occasions when the significance of the law was at stake. Put differently, when government had not yet assumed the mantle of "We the people," there existed space for people to be "the people." Let's look at how colonists used that space.

Processions

Rulers of the early modern era might appear to their subjects in two significant ways. First, their images were cast on coins, conferring value on money and receiving it back in turn. In addition, monarchs appeared in person on a variety of formal public occasions, celebrations, and anniversaries. Elizabeth I was particularly fond of doing this. She "progressed" her realm, from one to another urban center, offering her subjects glittering and dramatic pageantry. In January of 1559, for example, she traveled through London bedecked in gold cloth and jewelry and carried on an open litter attended by 1,000 horsemen. Other actors too took the stage on such occasions, as local lords, gentlemen, and officials of varying ranks recognized and responded to the Queen's Majesty in heavily ritualized interactions. Large numbers of spectators of different social classes had the opportunity to watch the proceedings, as their social superiors symbolically laid claim to their status at the center of power. People lined the streets and watched from nearby windows, and those who were unable to attend such events could read in cheap published ballads, broadsides, and chapbooks detailed accounts of the ceremonies appropriate to monarchy. In provincial cities, in the absence of monarchs, local authorities did their best to mark such occasions with due pomp and circumstance—all to make sure that even those as lowly as cobblers could tell that they were splendidly governed.2

Colonists in British North America lacked a resident monarch, but they made the most of the lesser dignitaries they had. Governors, appointed by king or proprietor in most colonies, represented royal power, and they expected appropriate recognition. In 1758, for example, Sir Francis Bernard landed in Trenton, New Jersey, to take up the government, and the inhabitants provided a proper reception: "His Excellency was received at this antient Seat of Government with great Demonstration of Joy, and having received the Compliments of numbers of Gentlemen of Distinction, the Evening was concluded with Bonfires, Illuminations, ringing of Bells, &c." Elements of the festivities were reserved for the elite of the city, but processions to "the large Meeting-House," where the governor's commission was read, and to "the House of Mr. Shaw" provided the populace at large the opportunity to observe the new governor and local worthies. Custom decreed that the Jersey governor travel to Burlington and Perth Amboy for public ceremonies as well, and there were similar processions in colonial capitals such as Williamsburg, New York City, and Boston from time to time. Like most subjects in England, moreover, subjects in America observed coronations and royal birthdays at a distance, by means of local ceremonies.

These were occasions of some constraint: Elizabeth's 1,000 horsemen must surely have had some impact on that occasion, and the people's proper role often seems minimal. Most of the time they seem to have gathered "in great concourse," huzzahed when appropriate, and gone home to illuminate their houses to show approval. Still, they had been invited to make demonstrations, and it was not always "great Demonstration of joy." It was possible for the people to hiss rather than huzzah, as an unfortunate Massachusetts governor discovered. It was possible, as Philadelphians proved, to leave your windows dark in the evening time. It was possible to fail to gather in great concourse, as apparently happened with George III. (A satiric cartoon from 1770 showed his carriage on an empty London street. Said the caption: "We are no longer plagued by the acclamations of the people.")

If power did not arise from those who lined the streets to view and huzzah, it was not contained by the monarch and his or her entourage either. Power circulated on such occasions, as historian Grant McCracken tells us. Like money, like news, it changed hands, which is how many people felt its potency and could be reassured it existed at all. If colonists were unquestionably spectators at processions, then, they did not have the experience of being reduced to mere spectators. For under the monarchy, the people were not needed to institute government but to receive it, recognize it, and respond to its claims of authority. We might remember that "to recognize" can mean to convey power, give public status, or provide space and time within which someone (say, for example, a distinguished senator) may speak. In this sense colonists sometimes recognized authority, while calling on authority to recognize them in turn. We might call this "spectatorship," if we can shake the term's connotation of passivity and emptiness. Spectators in the colonial era sometimes filled that empty space with a specific capacity to see, or see through, the emperor's clothes.

Courtrooms

Courts of law provided another occasion for official pomp and display, and thus also for the people's presence and the public recognition of authority.

In the courtroom, wrote James Parker in 1746, judges "represent the king's person, they are his officers, and act in his stead." Their job was to bring the force and majesty of the law from the centers of power out into the lives of the people. It followed, said a Virginian, that the justices should be "members of that estate of Men which be Called Worshipful." In early Massachusetts, Governor John Winthrop advised that magistrates take pains to look impressive: "Magistrates shall appear more solemnly in public, with attendance, apparel, and open notice of their entrance into court." Well done, it excited admiration. "The Superior Court met yesterday and made a Good Figure," wrote Justice Samuel Sewell approvingly. And in Newark, New Jersey, Judge Sanford declared his authority on the bench by wearing not only a "hatt and wigg" but a sword. Hats on top of wigs only approximated crowns, but they surely distinguished a justice from "the uncovered ranks of society," which is to say everyone else in court.

Still, the uncovered ranks had their role in the courtroom. First was the grand jury, a body composed of 15 or more men qualified to vote in provincial elections, called together in their respective counties to bring the disorders and misbehaviors of the people to the jurisdiction of the courts. The great bulk of criminal matters in the colonies passed through the jurisdiction of a grand jury. Local justices of the peace might handle some petty misbehaviors on their own knowledge, dealing out summary justice. Moreover, grand juries were not the only means of bringing significant crimes to trial. Suspects could be prosecuted based on "information" from the King or his officers, "without any finding or presentment by the Verdict of Twelve men," but by "discretion" alone.3 And it was certainly easier for an appointed official to bypass the grand jury in difficult or controversial cases. Yet even a conservative jurist, Thomas Hutchinson of Massachusetts, acknowledged it "a Hardship on the Subject" for petit trials to proceed without grand jury indictment. By broad consensus, grand juries were generally needed to bring a suspected felon to trial.

Much like today, grand jurors heard charges against suspects, interviewed witnesses, and decided whether to find "a true bill"—saying the accused was guilty and should go on to petit trial—or "ignoramus"—literally, "we do not know," hence that the accused could not be indicted. At least twelve of the jurymen had to find a true bill to present a defendant to further trial. Besides identifying malefactors, grand jurors were to discern problems of public order. English practice licensed grand juries to present public dangers or nuisances to the court and suggest legislative or executive remedies. Thus, though it involved no crime and suggested no criminal ran at large in the county, the "unnecessary multiplication of licensed houses"—that is, taverns—was a frequent problem that might engage the grand jury. This and other "things neglected or things damaging"—the sorry condition of the county jail, the unmet needs of the poor—lay within the "discretionary power" of the grand jury to notice and bring to the court's attention. Jurymen might overlook a great deal, leaving out of court the matters they deemed satisfactorily settled by other means. They were in a position to judge which disorders were of the scale or of the sort to be brought to the jurisdiction of the provincial state and its law.

In general, this sort of discretion was entrusted to men with social stature. South Carolina set high property standards for participation in the grand jury; everywhere else, all freemen were eligible to serve, though in practice members of these panels were often of the better sort. In Connecticut, the men on grand juries were elected by freeholders at town meetings, two from each town, but in most places they were selected by an appointed official—usually the sheriff—who was himself obliged to the governor or the county court for his position. Still, grand jurors gathered "from all the several Parts of the County to represent the State of it." Other writers similarly spoke of grand juries as representative bodies. Thus, the New York Weekly Journal waxed rhetorical in 1734: "Does not the grand jury (tho' chose by the Sheriff) represent the county?"4 In a manner of speaking, yes: grand jurymen represented not a group of constituents, but local knowledge.

Thus, a vital qualification for membership in a jury of any sort was geographical, a qualification of inhabitancy. Petty jurors too needed to come from the vicinage of the crime and be "neighbours" of the parties. The English writer John Somers said jurors should be "Companions" of the accused, "known to him, and he to them, or at least his Neighbours or Dwellers near about the place where the Crime is supposed to have been committed, to whom something of the Fact must probably be known." Grand jurymen's knowledge of local events was sufficient basis on which to act; they might bring suspects to trial even if no one complained of a crime and no witness appeared to swear that one had even occurred. Intimate knowledge of the locality was equally valuable in determining cases brought by third parties. Which witnesses to believe, which accounts of the parties' transactions were most plausible—jurors were expected to make such decisions not merely on the impression and information received at court, but on the grounds of prior knowledge. The ideal juror would be impartial, not prejudiced toward one side or the other, but he would also be informed, able to draw on a familiar history of local relationships.

Indeed, we can easily underestimate the accepted and vital place of local knowledge in the courtroom, because we work to expunge prior, local knowledge from the proceedings of criminal justice. All law needs to simplify the messy interactions of life, selecting elements to be deemed pertinent, definitive of legal outcome. "Whatever it is the law is after," says the anthropologist Clifford Geertz, "it is not the whole story." In the 18th century, a jury of the vicinage might bring more of the "story" into account, relying on common information and ordinary judgment in its determinations. When a "Chymist" of Philadelphia named Dr. Evan Jones came to trial for the death of an apprentice, witnesses elucidated the facts of the matter to the jury. Yet in fact, noted The Pennsylvania Gazette, "for several Months before the Tryal came on, there was hardly any Person in Philadelphia, who could be ignorant of the Affair in all its horrid Circumstances." Despite such widespread familiarity with the event, no one proposed that justice might be better served by trying the case in Lancaster. To suggest a change of venue to a more neutral site would have been to value ignorance or equate it with impartiality. But a substantially different sense of justice informed the colonial process than informs ours today: a later age would prize informed and opinionated voters but uninformed jury members; the 18th century preferred something approaching the reverse.

Petit jury trials were more broadly public, open to spectators, on the one hand, and engaging less uncommon commoners as jurors, on the other. Yet the jury did more than sort through conflicting testimony to conclude what was likely to have happened. Juries of the 18th century routinely decided law as well as fact, judging whether a specific action qualified as a greater or lesser offense or, indeed, whether that action constituted an illegality at all. Now, the distinction between the "facts" of a case and the pertinent "law" is a fine and possibly unsustainable matter, since the simplest statement of events contains assumptions and definitions framed by the law.5 Yet the 18th century insisted on the distinction between the two, and a good many authorities insisted that the jury had the power to decide them both.

The reason was simple: the jury's powers were essential to the English project of preventing tyranny. Without juries, everyone knew, the law might be used to oppress the people by imprisoning them or seizing their property unfairly. When a New York provincial attorney challenged jurymen's right to be "Judges of Law," the defense insisted on their judicial discretion. "Paenal Laws are strictly to be taken and interpreted, and not allowed to the ruin of the Subject, to extend, or be interpreted beyond the plain and strict sense of the words."6 Surely jurymen, however unlearned, might be able to discern the "plain and strict sense" of the law.

Even in cases in which oppression was not at issue—even in the routine determination of legal outcomes—the jury brought "a democraticall voice," adding "a mixture of popular power" to the courtroom, where the monarch's representative presided. When a defendant requested a jury trial, he was said to "put himself upon God and his country." Judges, one writer wryly insisted, were not to imagine themselves indicated by either of these terms. The "country" was a phrase that referred to neither bench nor bar, but solely to the jury.7 The English legal authority Henry Care put it succinctly in his 17th-century account of "the Free-Born Subject's Inheritance": "This Birthright of English-men shines most conspicuously in two things: 1. Parliaments 2. Juries." Through both of these institutions, the theory ran, the King was confronted with the will of the people.

How well specific juries expressed the people's will was open to debate. In countless cases, surely, the issue of defending against tyranny did not arise. Courtroom transactions between ruler and people might prove a gracious meeting of the minds. Besides, jurors might be overawed or pressured by their superiors. Handpicked by those in authority, a grand jury might be "Chosen on purpose to find the Presentment," as one indicted New Yorker complained in print and others doubtless complained in private.8 Yet juries were never as compliant as judges might wish. Grand juries would not indict in countless cases brought before them by officials of the Crown. In New Jersey, the Proprietors charged that juries were biased by ties of kinship; the populace retorted that patronage gave the proprietors control of bench and bar.9 There were frequent denunciations of juries that did nothing or the wrong thing. The foreman of one New York jury informed the provincial attorney that, despite the experts' clear statement to the contrary, "the Defendant had not transgressed any Law."10 Other legal experts also met with opinionated jurors, jurors who dutifully found fact and law from the perspective of the common ground.

Belief in the value of that perspective led some colonists to worry about the growing influence of lawyers in the criminal courtroom. True, advocates offered jurors alternative interpretations of the law, which might sometimes enhance jurors' discretion. Yet many contemporaries worried that lawyers were merely complicating matters that ought to be as plain as day. It was not just that counsel might "for their fees strive only to baffle Witnesses and stifle Truth."11 Lawyerly skills might influence the jury's deliberations. Thus, a North Carolina man urged that the provincial attorney general, Robert Jones Jr., be henceforth prevented from courtroom practice, for he used "great volubility of speech" and other "wiles insinuations and chicanerie" to play on "the passions of weak juries to blind their conception of Justice in order to gain his point."12 In short, Jones compromised the essential role of the jury, which was to bring to the court a "conception of Justice" that was local, ordinary, and common in its nature.

Finally, there were other players at court, and these were the spectators, the public who stood within the courthouse, mingled in the yard outside, or refreshed themselves at the taverns nearby. "Every male person can attend such a court and every one is permitted to takes notes," reported a German observer at a military court martial in Cambridge, Massachusetts. "The courtroom is packed, and not even the humblest is refused admittance."13

The public administration of the law had a clear didactic function. In the only partially literate society of 18th-century Virginia, the historian Rhys Isaac writes, court day "served not only to make the community a witness to important decisions and transactions but also to teach men the very nature and forms of government." Everywhere court day informed people of the law, and it provided the occasion for the populace to recognize authority in the persons of magistrates and in their ritualized language, dress, and gesture. Most adult males in 18th-century Connecticut ended up at court at one time or another, as litigants, jurors, observers, or witnesses. The same probably held true in other colonies too, and since even free women occasionally appeared as litigants, witnesses, or defendants, a substantial portion of society might at one time or another be present at court.14

Of course, rules of decorum required that spectators show deference toward the gentleman justices. Architects of courthouses embodied relations of power in their designs, sometimes underscoring judges' prominence by seating them above, placing lawyers within the bar and with their backs to the public, and providing spaces outside the courthouse to be allocated to less substantial spectators.15 Still, these efforts to constrain the popular presence reflect the fact that the proceedings might depend precisely on the quality of spectators' engagement and reception. Onlookers exerted a force in the courtroom, and no player remained untouched by it. Judges' social standing could insulate them from "the humours of the populace," but they reached their decisions knowing that courtroom events might be widely broadcast throughout the county. Good lawyers concentrated on swaying judge and jury, but it would not hurt to bring "tears to the eyes" of onlookers too.16 Finally, what made it plausible to cast jurymen as an extension of "the people" was in no small measure that they remained face to face with their peers and inferiors. It is noteworthy that grand juries met in private, for "People out of Doors will influence your Conduct if they know the Business you are engaged on."17 By contrast, members of the petit jury, less socially exalted to begin with, were purposefully left vulnerable to the gaze of their peers and inferiors. The public presence should influence the decisions of jurymen, according to one Massachusetts clergyman: "The Eyes of Men are upon you," he told the jury, "and you may be sure will be so."18

Sites of Punishment

Verdict rendered and sentence proclaimed, the execution of courtroom decisions still depended on a measure of popular consent. Some convicted criminals, especially those with economic means and social stature, paid their debts to society by paying a fine. But poorer people faced public and physical punishments, from whippings or brandings in the pillory or exposure in the stocks to the final punishment of hanging. These punishments took place in the marketplace, near the meetinghouse, by the county courthouse in Virginia, on the streets or the common of a New England town. A Maryland statute that required that towns and counties maintain stocks and pillory as a standard part of the landscape was typical of the time.19

Public punishments combined the imposition of order and the potential for its disruption. Thus, onlookers might mitigate or support the sentence of the court, add to the culprit's pain, fatigue, and abasement or, on the contrary, express sympathy with him or her. In the winter of 1733, a counterfeiter named Watt was whipped, pilloried, and "cropt" in the streets of Philadelphia. "He behaved so as to touch the Compassion of the Mob, and they did not fling (as was expected) neither Snow-balls nor any Thing else." When malefactors were more unpopular, the price of eggs was known to rise. Even the procession from the court or jail to place of punishment was an occasion for popular participation. Two itinerant clergymen complained when they were arrested for unlicensed preaching in New York City, for they had been treated as "Exemplary Criminals," the sort of transgressors "to be carried about in Triumph to be insulted over." Presumably, the meaner sorts of lawbreakers—accused pickpockets, prostitutes, or rioters, say—were appropriately paraded "in Triumph," with dual intent: making miscreants vulnerable to insult by bystanders; making bystanders vulnerable to the example of wrongdoers brought to shameful punishment.20 In these punishments, "the people"—or some of them—had the right and the capacity to make their own judgment felt.

This was clearest at the many cases of the ultimate punishment: executions. The purpose of executions, wrote Dr. Benjamin Rush, was "to instill terror in onlookers." At the same time, such punishments had to be widely received as just. Like other acts of rule, executions employed solemn ritual and a large public gathering to dramatic effect. Ministers read sermons, and the prisoner him- or herself might address the crowd. Printed accounts of executions, sometimes including woodcuts, extended the occasion's reach. It heightened the drama of executions that their occurrence remained uncertain. Official reprieves and pardons were not uncommon, and some such acts of mercy were purposely announced only when the convicted stood on the scaffold and spectators had assembled.

In one late-17th-century example, the governor of Maryland pardoned a man condemned to hang for the crime of witchcraft, provided that he be kept in ignorance of the pardon until the very rope was around his neck. There was a lesson in such a pardon, for the criminal and the onlookers alike. In 1730, Pennsylvania's governor pardoned burglars James Prouse and James Mitchel just as they stood on the gallows, citing public sympathy for the "tender youth" of one and the "supposed Innocence" of the other. No doubt the governor was gratified to learn that the "common People" present at the gallows "were unanimous in their loud Acclamations of God bless the Governor for his Mercy."

By the same token, even execution required popular cooperation. At a minimum, it took a cartman to hire his team and his labor, a carpenter to build the scaffold, a hangman to do the job. The governor of Bermuda regretted that cooperation with legal punishment suffered from bad repute in his colony: "Every man flies from the office of a whipper more than from the crime which causeth the whippinge."21 Moreover, if the prerogative power could summarily set aside the decision of the court, so could the common power wielded by ordinary people. At times they went so far as to deliver from punishment those whom popular opinion deemed unjustly convicted, sentenced too harshly, or otherwise ill-used. In Hadley, Massachusetts for example, a dozen men armed with clubs and cudgels set upon a corporal in the colonial militia when he tried to execute a sentence on a man delinquent in his duty. In 1702, unknown persons prevented capital punishment in New York City by cutting down the gallows. Sixty years later in the same city, two felons sentenced to hang enjoyed a temporary reprieve because "the sheriff cannot find any person to act as hangman" and officials feared "an Attempt . . . to rescue" the condemned. Only the presence of British troops finally allowed the execution to proceed. In Boston, "the Populous hindered the Sheriff doing his duty" when they prevented a whipping at the pillory.22 In rural areas, proprietary disputes and attendant conflicts over land titles led to violence, and crowds in New Jersey, to give one example, prevented arrests, broke open jails, and freed those accused of treason and lesser crimes. On these occasions, a local "public" deprived the state of its pound of flesh.

Let me be clear: there were riots and rescues, criminal and often discreditable acts, undertaken to secure private benefit or indulge private grudges, acts with no pretension to public significance and acts with so feeble a pretension to fairness that even superficial scrutiny would lead most observers to conclude they were simply crimes. But there were other occasions as well when colonists claimed to act as "the people," setting their own notions of justice over and against notions expressed in statutes or courtrooms. We need not applaud such events or assume that the acts of 18th-century juries or spectators would satisfy our own ideals of justice or our commitment to the rule of law. If they win our sympathies by rescuing sailors from impressments by the Royal Navy, or burglars from execution, colonists also assumed the capacity to inflict punishments on individuals who, though they offended local moral standards, were not convicted of any crime at all. For "local knowledge" we might sometimes read "local prejudice." My point is that some subjects of the British king, limited in their rights and privileges in many respects, might yet have had substantial experience serving as "the public," "the country," or "the people." More than the periodic opportunity to vote for a representative, they lived in a particular proximity to public time.

The ease with which some colonists could become "the people" had its impact on judges and other rulers. All parties knew that there would be arenas for the discretion of grand juries, petit juries, and the broader public that might gather at trial or at punishment. The effects or workings of that understanding can be seen in the striking case of the New Yorker James Wilkes, accused of killing Under Sheriff John Christie in 1756. According to authoritative accounts, Christie had entered Wilkes's unlocked house in daylight, armed with a writ (though not a warrant). Wilkes had stabbed Christie while resisting arrest, for which he was indicted, tried, convicted, and sentenced to hang. Yet before the execution took place, the governor gave Wilkes a reprieve and then a pardon. The avowed reason for this move was simple. The murderer, the governor explained, "strongly believed a common Error generally prevailing among the Lower Class of Mankind in this part of the world." And this was the error: "that after warning the Officer to desist and bidding him stand off at his Peril, it was lawful to oppose him by any means to prevent the arrest."23

As we might expect, authorities made an effort to change the public view. The Pennsylvania Gazette told the lower classes that "Sundry Authorities" fully contradicted the popular understanding, as "all the Judges of England, and Barons of the Exchequer, who met together by the King's Command." Perhaps, the paper concluded, "the unhappy Condition of the Prisoner now under Sentence of Death, will be an Example and a Warning," that would make the proper interpretation clear. (The Gazette never reported on Wilkes's pardon.) Yet after all the explanations and admonitions, popular conceptions made themselves felt. Though the court found him guilty, the governor let Wilkes off. Did the governor imagine riots, difficulty, dissent, or did he court the gratitude of the lower classes? In either case, his decision testified to the popular power.

The Wilkes case shows the inadequacy of the law formed in statute and case, its inability to contain people's lives or constrict their thinking. It is permissible to cast this as popular ignorance but more accurate to name it recalcitrance, the hardheaded preference of some colonists for their own common version of what was lawful. The members of the "lower class of Mankind" were not so misinformed as to believe that they held fewer rights against arrest than the government recognized. Together, this verdict and this pardon made clear that the law might sometimes be modified by the giving or withholding of after-the-fact consent—or even, as happened here, in the governor's anticipation of the same.

Collective Liberties

It is time to return to the cobbler and to reassess his capacity to recognize whether he was well or ill-governed. The adage located the cobbler "in his stall"—that is, in the marketplace or shop, in the midst of daily life. But cobblers might sometimes recognize authority as it paraded about the streets of leading towns, or as it sat on the bench in county court, or as it set men and women in the pillory or on the gallows. What was ordinary men's role at such moments, and in what sense might it be understood as one of political participation?

To begin with, the powers commonly exerted on such occasions were not the powers of citizen-individuals, but rather the liberties of subjects, collective and subordinate. Authorities expected recognition and assent from their inferiors, and they had at their disposal various powers and sanctions should it not be forthcoming. If the monarch and magistrate set themselves on view, so too were cobblers visible to the agents of power. We are not yet in the 19th-century state, where the government's surveillance of the citizen arguably became central to its form of rule. Still, individuals who decided to demonstrate their lack of respect to a magistrate, sheriff, or other worthy knew they risked consequences. (When a Pennsylvanian named William Hatton insulted the justices of York County, "calling them Coopers, hogg trough makers, Pedlars, Cobblers," and "saying they are not fitting to sit where they doe sit," he was not surprisingly found guilty of contempt of court.)24

These were not individual rights, and indeed, nothing so misleads us about the 18th century as the tendency to understand "the people" as a mere assembling of individuals. What authorized the people's presence was not individuality, but rather the subjects' capacity to hold their liberties in common. In all this, "the people" offered a fiction of use to top and bottom, inside and out. We recognize "popular sentiment" or "the public" for what they were: constructions that might serve to totalize, notions that flattened the social landscape, portraying themselves as embracing everyone outside the ranks of the elite while in fact leaving out a good many actors and interests. Moreover, plausibly passing as "the people" or "the town" might be a complicated negotiation. In the view of political insiders, surely, far from every crowd qualified as "the public." Few gatherings composed wholly of African- Americans, Indians, mere apprentices, or laborers passed muster as legitimate expressions of "the public voice." When a gentleman denounced a crowd as composed of "Negroes and boys," it was precisely an effort to deny the group the capacity to occupy the role of "the country." Men of low status were not always intimidated by such judgments and even colonial women occasionally acted as a group to intrude their own moral sensibilities onto the public stage. Yet generally, when African-Americans, European-Americans, boys, or women took part, their participation depended on their indistinguishability, a capacity to blend into the midst of their betters. On these occasions, in fact, even those colonists entitled to vote or sit on juries acted not by virtue of their individuality or distinction but by virtue of their access to merely ordinary knowledge and common judgment. Being undistinguished, a liability that disqualified colonists from voting before-the-fact, might prove an asset on occasions of after-the-fact consent. To speak of indistinction is to speak of membership in neighborhood and congregation, networks of kin or occupation, and the status of English subject, held in common.

What might this understanding of 18th-century popular participation teach us? First, it helps bring home the sense of dire grievance that drove many 18th- century colonists to resistance and revolution. We see easily enough why colonists would object when, beginning in the mid-1760s, Parliament laid taxes and passed laws to bind the king's North American subjects, bypassing provincial legislatures altogether. We understand their impassioned defense of elected assemblies, their cry of "No Taxation without Representation." Surely it was safer to be ruled by not very representative neighbors than by not at all representative strangers. Equally disturbing to many, Parliament routed execution of these new laws through admiralty courts, where a judge would preside unhampered by either jurors or public spectators. However indifferent Americans today may be to the average defendant's public jury trial, we can recognize why colonists might rise to rebellion on behalf of that institution. Moreover, we are reminded of the magnitude of the threat made to English liberty when the ministry filled Boston and New York with troops, an armed, professional police, sent precisely to occupy the grounds on which even poor people were accustomed to consent. In response, then, colonists created a coalition of "Patriots": members of the political elite, particularly fond of representing the people in the provincial assemblies; and more common people, particularly fond of being present in the courtroom, the street, and other sites of execution of the law.

Equally, this view of after-the-fact participation raises questions about what occurred after the Revolution. For some of the forms of participation that common men enjoyed, some spaces for consent that they mobilized to defend, did not persist for long. In the 1780s, farmers in western Massachusetts gathered to shut down courts of law. Much like North Carolinians two decades before, they complained of excessive taxes that were levied to enrich the few, exacerbate debts among the many, and cause foreclosure and seizure of lands. Like many colonists before them, they assumed the capacity to recognize injustice and to prevent its execution.

Yet leaders of the new state government insisted that independence had brought essential change. The revolutionary Samuel Adams explained it: now living under constitutional governments, farmers had consented to consent in particular ways. Henceforth they should behave as citizens rather than as subjects; they should take their grievances to the polling place rather than intervene in execution of the law. In short, an arena that had existed as a space for popular discretion now existed as a forum for mere "enforcement."

Adams's view had its logic: the voters, at least, had already had a voice in the execution of the law, for governors, judges, and other executive officials were now either elected or appointed by elected men. Yet the skepticism of contemporaries comes down the years with considerable force. How adequate was election as the source of popular authority? Was voting the sum total of the popular role? Were the people to be merely represented, never present at sites of power?

Americans have never fully settled on an answer. Over time, the institutions that framed possibilities for what I have styled after-the-fact participation underwent striking change. In the 19th century, public punishments were reformed and then abolished, a professional police force appeared in many cities, and in courtrooms criminal prosecutors replaced juries as spokesmen for "the people." Yet if American citizens found some sites of common consent newly closed to their participation, they would, as prescribed, turn to the vote. Candidates sympathetic to the western farmers swept Massachusetts elections in 1786. Their success encouraged conservative men to press for the adoption of a federal Constitution, an expedient that would remove significant powers from the states to a site remote from the public. The pattern was set: a continuing contest over the reality of the vote. Some Americans worked to open the vote to more people, extend it to more offices, use it against unfaithful rulers, protect it by a vigilant free press that would reveal to the people what their representatives were actually doing. By the same token, other Americans pushed to insulate decision-makers from the electorate and mediate public access to information and policy, to render the people mere spectators of power.

Here we are, then. Today the powers that be make much of our vote. But for the vote to suffice, it needs to be counted, it needs to be free, and it needs to be shared. Might we reclaim a political space that is at one and the same time local, ordinary, and—now on a global scale rather than just an Atlantic one—broadly common? It seems to me important that Americans today recover a sense of ourselves as collective actors, situated both in place and in history. The people need to be adequately represented. They also need the capacity to be present. <


Barbara Clark Smith, a curator at the Smithsonian Institution, is writing a book on popular politics in Revolutionary America.

Notes

1 The generous view was expressed by "Cato," or Trenchard and Gordon, the English writers, and quoted in the Boston Evening Post, August 6, 1739. The less generous view is cited in Bartlett Jere Whiting, Early American Proverbs and Proverbial Phrases (Cambridge, Mass.: Harvard University Press, 1977), p. 78. The quote is from the Pennsylvania Chronicle, 1768.

2 Grant McCracken, "The pre-coronation passage of Elizabeth I: political theatre or the rehearsal of politics?" Canadian Review of Sociology and Anthropology 21 (1984), 47-61; see also Clifford Geertz, "Centers, Kings, and Charisma: Reflections on the Symbolics of Power," in Sean Wilentz, ed., Rites of Power: Symbolism, Ritual and Politics since the Middle Ages (Philadelphia: University of Pennsylvania, 1985). On spectacle and politics, see Jean-Christophe Agnew, Worlds Apart: the Market and the Theater in Anglo-American Thought, 1550-1750 (New York: Cambridge University Press, 1986); Bernard Capp, "Popular Literature," in Popular Culture in 17th-Century England, ed. Barry Reay (London: Croon Helm, 1985).

3 Sir John Hawkes, The English-man's Right: A Dialogue Between a Barrister-at-Law and a Jury-Man (London, 1680), pp. 6-7.

4 See Richard D. Younger, The People's Panel: The Grand Jury in the United States, 1634–1941 (Providence, R.I.: Brown University Press, 1963), p. 5.

5 Bruce Mann says it is "artificial and impossible to maintain in practice." Mann, "The Evolutionary Revolution in American Law: A Comment on J.R. Pole's ‘Reflections,'<0x2009>" William and Mary Quarterly, 3rd ser., 50 (1993), p. 170, note 4.

6 "A Narrative of a New and Unusual American Imprisonment of Two Presbyterian Ministers," (1707), in Peter Force, ed. Tracts, vol. IV, no. 4, pp. 43-44.

7 The quotations are from John M. Murrin, "Magistrates, Sinners, and a Precarious Liberty: Trial by Jury in Seventeenth-Century New England," in Saints and Revolutionaries: Essays on Early American History, ed. David D. Hall, John M. Murrin, and Thad W. Tate (New York: W.W. Norton, 1984), p. 200; John Adams, quoted in William E. Nelson, The Americanization of the Common Law: the Impact of Legal Change in Massachusetts Society, 1760–1830 (Cambridge: Harvard University Press, 1975), pp. 20-21. Also making the point that the "country" was the jury was Hawkes, English-man's Right, p. 8.

8 "New and Unusual American Imprisonment," p. 23.

9 McConville, Daring Disturbers of the Peace, p. 116.

10 "New and Unusual American Imprisonment," p. 44.

11 Hawkes, English-man's Right, p. 9.

12 Petition of Reuben Searcy and others, 1759, in Boyd, Some 18th Century Tracts, p. 181.

13 Ray W. Pettengill, trans. Letters from America, 1776-1779; Being Letters of Brunswick, Hessian, and Waldeck Officers with the British Armies During the Revolution (Port Washington, N.Y., 1964, 1924), p. 137.

14 Bruce H. Mann, Neighbors and Strangers: Law and Community in Early Connecticut (Chapel Hill: University of North Carolina Press, 1987), p. 8. On spectators in courts: E. Merton Coulter, ed., The Journal of Peter Gordon, 1732-1735 (Athens: University of Georgia Press, 1963), p. 14; Charles S. Sydnor, Gentlemen of Property and Standing: Political Practice in Washington's Virginia (New York: Free Press, 1965), chap. 6; Isaac, Transformation of Virginia, pp. 88-94.

15 "Memoir of Governor Increase Sumner," New England Historical and Genealogical Register 8 (1854), p. 116. Roeber, Faithful Magistrates, pp. 75-79, 118. Carl Lounsbury, "The Structure of Justice: The Courthouses of Colonial Virginia," Perspectives in Vernacular Architecture III, ed. Thomas Carter and Bernard L. Herman, (Columbia, Mo., 1989), pp. 214-226.

16 New York Governor Cadwallader Colden stressed the need to insulate judges from popular opinion in these terms, quoted in Douglas Greenberg, Crime and Law Enforcement in the Colony of New York, 1691–1776, (Ithaca, N.Y: Cornell University Press, 1976), p. 176; Pettengill, Letters from America, 137. The lawyer John Adams noted when spectators smiled, whispered, or cried at court. L.H. Butterfield, ed. Diary and Autobiography of John Adams, 4 vols. and supplement (Cambridge, Mass., 1961), 1:69.

17 Thomas Hutchinson, "Charge to the Grand Jury, 1768," in Quincy, pp. 313-14.

18 John Prentice, "King Jehoshaphat's Charge," (Boston, 1731), p. 21.

19 William Lincoln, History of Worcester, Mass. from its Earliest Settlement to September, 1836 (Worcester, Mass.: Charles Hersey, 1862), p. 58.

20 The Pennsylvania Gazette, January 11, 1733. "New and Unusual American Imprisonment," p. 8.

21 Wesley Frank Craven, "An Introduction to the History of Bermuda: The Revised Plan of Settlement," William and Mary Quarterly, 2nd ser., 18 (1938), p. 32.

22 Joseph H. Smith, ed., Colonial Justice in Western Massachusetts, pp. 110, 284-86. Greenberg, Crime and Law Enforcement, 180-181, 167; Alfred F. Young, "English Plebeian Culture and 18th-Century American Radicalism," in The Origins of Anglo-American Radicalism, ed. Margaret Jacob and James Jacob, (London and Boston, 1983), p. 190; Anne Rowe Cunningham, ed., Letters and Diary of John Rowe, Boston Merchant(New York, 1969, c.1903), p. 213.

23 Greenberg, Crime and Law Enforcement, p. 160; The Pennsylvania Gazette, 1756.

24 "Extracts from the Records of York County," William and Mary Quarterly, Vol. 26 No. 1 (July 1917), p. 30.

Originally published in the February/March 2004 issue of Boston Review.



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