»Arms are necessary«: Gun Culture in Eighteenth-Century American Politics and Society 9783412212414, 9783412204785

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kölner historische Abhandlungen Herausgegeben von Jost Dülffer, Norbert Finzsch, Karl-Joachim Hölkeskamp und Eberhard Isenmann Band 48

»Arms are necessary« Gun Culture in Eighteenth-Century American Politics and Society

by

Michael Lenz

2010 BÖHLAU VERLAG KÖLN WEI MAR WIEN

Gedruckt mit freundlicher Unterstützung der Gerda Henkel Stiftung, Düsseldorf

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar. Umschlagabbildung: Alexander Hamilton and Vice President Aaron Burr dueled over an insult to the latter’s honor. The pictured meeting, in which Hamilton was mortally wounded, took place on 11 July 1804 at Weehawken, New Jersey. Dueling was just one of many ways in which firearms carried meaning for American society in the eighteenth century. (From: John Lord, Beacon Lights of History: The World’s Heroes and Master Minds; Volume XI: American Founders. London: Waverly Book Company, 1911, facing page 211.)

© 2010 by Böhlau Verlag GmbH & Cie, Köln Weimar Wien Ursulaplatz 1, D-50668 Köln, www.boehlau.de Alle Rechte vorbehalten. Dieses Werk ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig. Druck und Bindung: MVR Druck GmbH, Brühl Gedruckt auf chlor- und säurefreiem Papier Printed in Germany ISBN 978-3-412-20478-5

To my friends, both here and there

Acknowledgements

This present book is a slightly revised version of my dissertation, accepted by the Faculty of Philosophy at the University of Cologne. During the years that I have been working on it, I have incurred more debts of gratitude than I can ever hope to repay. My adviser, Professor Norbert Finzsch, not only encouraged me to embark upon this project, but supported me throughout its duration. He made time available whenever I needed his advice, supported me in numerous scholarship applications and enabled me to collect valuable and enjoyable teaching experience at the Department of Anglo-American History. Professor Christof Mauch, then director of the German Historical Institute in Washington, DC, was similarly generous in providing advice and support. Professor Heike Bungert was an invaluable counselor as well as a friend. Throughout my years of dissertation work, I have been fortunate to have friends and professional supporters both in Germany and in the United States. In Madison, at the University of Wisconsin, Dr. John Kaminski, director of the Center for the Study of the American Constitution and co-editor of the Documentary History of the Ratification of the Constitution granted me permission to use the ratification project’s files for my research, enabling me to use the collections of many more archives – available in photocopy there – than I would otherwise have been able to visit. He and his colleagues Dr. Gaspare Saladino, Dr. Richard Leffler and Dr. Charles Schoenleber not only helped me navigate their massive collections but regularly found time for many an instructive chat, all the while answering my many questions unwaveringly and unflinchingly. Over the past couple of years, I have visited many archives, libraries and historical societies, most of which provided excellent service to researchers. Yet, some experiences stand out so prominently that I wish to name them specifically. At all times, the services of the South Carolina Division of Archives and History in Columbia were exemplary and the staff there was universally helpful. Especially Dr. Charles Lesser went to extreme lengths to acquaint me with the collections of the archives and the particular difficulties attendant upon the research and use of South Carolina’s probate records. He shared his own experience liberally and was a great help in getting my project on track in the very early conceptual stages. Robert H. Mackintosh had many brilliant ideas about where to locate additional source material and greatly facilitated my smooth work in Columbia. My experience at the State Historical Society of Wisconsin in Madison was similarly superb. Not only does the society maintain an outstanding collection on almost any aspect of American history, but it has the additional virtue of doing so in the very pleasant setting of its wonderful old building in the heart of

VIII

Acknowledgements

Madison. Lori Bessler and Keith Rabiola deserve my especial thanks, as they helped me locate countless volumes, retrieved microforms and pamphlets without number and persuaded many a microfilm reader-printer back into service when those had had enough of me. I could never have gotten anywhere near any of those archives, libraries and historical societies without the financial support of different organizations. The Gerda Henkel Foundation maintained me with a Ph.D. scholarship as did the state of North Rhine-Westphalia. The German Historical Institute’s KadeHeideking Fellowship afforded me the means of conducting research in the United States as well as the opportunity of working in a wonderful atmosphere of collegiality in Washington, DC. Without these sponsors, this book would never have seen the light of day. A word of thanks is also due to the Center for Historical Social Research at the University of Cologne and its staff. Ralph Ponemereo and especially Jürgen Sensch helped me greatly in the conceptual stages of the project. Their assistance in planning the samples allowed me to identify many potential problems well before they arose. Their help was instrumental in making sure that the sampling procedures were useful for the task at hand. During these last years, I could always rely on my friends for their support, too. Brett and Katie Rusch, Matt Simo, Nate Fronk, Nick Ruys, Rob Korom and Brad Moore repeatedly offered me the hospitality of their homes whenever I was in Madison. They made possible many memorable stays there that were always pleasant as well as fruitful. On several occasions, Matt and Rob also obtained copies for me from the Historical Society of materials unavailable in Germany. Michael Schlütter has been a tough critic for years, and he and Nate Fronk have read and commented on various drafts of this dissertation. Their thoughts and ideas have greatly improved the manuscript. Thus, in reality a book like this one always has more authors than the one whose name appears on the title page. Especially, without the support of my friends – many more than those I have named individually above – this book could never have been written. They shared the many pleasures of researching and writing this dissertation and prodded me on and bore my griping when things were not going so well. To them I dedicate this book. And while I gratefully acknowledge the many contributions others have made, it is in the spirit of this acknowledgement that I aver that the responsibility for all errors of fact or interpretation is mine alone.

Contents

Acknowledgements .................................................................................................. VII Note on Editorial Procedures and Dates............................................................. XI Abbreviations and Short Titles .............................................................................. XII 1. Introduction...................................................................................................... 1 1.1. Goals .......................................................................................................... 5 1.2. Historiography .......................................................................................... 11 1.3. Sources ....................................................................................................... 14 2. Backgrounds: Historical, Social, Cultural .................................................... 21 2.1. The Beginning of the Eighteenth Century........................................... 21 2.2. Mid-Century and Revolution ................................................................. 40 2.3. Under the New Nation ........................................................................... 59 3. Arms in Early America ................................................................................... 70 3.1. Probate Records in Historical Research............................................... 70 3.2. Probate Records in Massachusetts and South Carolina..................... 76 3.3. Project Design, Rationale and Data Collection................................... 83 3.4. Analysis and Results ................................................................................ 87 3.5. Conclusions: What Does This Data Tell Us?...................................... 94 4. “Arma sunt necessaria”: Guns and their Meaning in Eighteenth-Century Massachusetts and South Carolina ............................................................... 96 4.1. Hunting ...................................................................................................... 97 4.2. Guns and the Military.............................................................................. 107 4.3. Crime and Self-Defense .......................................................................... 121 4.4. Duels .......................................................................................................... 130 4.5. Social Aspects ........................................................................................... 137 4.6. Celebration ................................................................................................ 141 4.7. Limitations of and Opposition to Gun Use ........................................ 143 4.8. Conclusion................................................................................................. 148 5. Constitutional Precursors to the Second Amendment.............................. 151 5.1. English Origins......................................................................................... 151 5.2. Colonial Americans and the English Right to Arms.......................... 152 5.3. American Constitutions .......................................................................... 156 6. Gun Culture, the Constitution and the Bill of Rights ............................... 162 6.1. The Right to Bear Arms in the Constitutional Convention.............. 163 6.2. Beginning the Ratification Process........................................................ 164 6.3. Pennsylvania.............................................................................................. 165 6.4. Massachusetts ........................................................................................... 167 6.5. South Carolina .......................................................................................... 174

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Contents

6.6. Achieving Ratification ............................................................................. 6.7. Constitutional Amendments and the First Federal Elections .......... 6.8. Congress and the Bill of Rights ............................................................. 6.9. Ratifying the Bill of Rights...................................................................... 6.10. Conclusion: Guns and Gun Culture during the Ratification of the Constitution and the Bill of Rights............................................................... 7. Conclusion ........................................................................................................ Appendix I: Example of a Probate Inventory..................................................... Appendix II: Maps ................................................................................................... Appendix III: Universes and Sample Sizes.......................................................... Bibliography ..............................................................................................................

181 188 196 201 203 206 214 216 218 219

Note on Editorial Procedures and Dates

Quotations from sources are generally verbatim and literatim, ellipses have been marked as such. I have retained original abbreviations and contractions where the sense was clear, but I have generally lowered superscript to the line. In some cases I have supplied what was necessary to clarify meanings and marked such emendations with [square brackets]. Conjectural readings of badly legible content are enclosed in {braces}, illegible content will show three dashes in braces {---}; when quoting from documentary editions, I have retained the editors’ signage. Due to the great variety of typefaces used in eighteenth-century print, I have generally omitted emphasis supplied in that way. In cases where an original emphasis has been maintained, the footnote will state that fact, as it will in cases where I have added emphasis. Prior to 1752, England and her colonies used the Julian Calender and took the year to begin on 25 March. I have stated dates as given in the documents, while in my narrative I have taken the year to begin 1 January.

Abbreviations and Short Titles

Acts and Resolves BEP Blackstone

CMP CMP/CG DHRC

DHFFC

DHFFE

DLC DNA Elliot, Debates

JCC

Jefferson Papers

The Acts and Resolves, Public and Private of the Province of the Massachusetts Bay [...]. Boston, MA: Wright and Potter, 1869ff. Boston Evening Post, 1735-1775. William Blackstone, Commentaries of the Laws of England. A Facsimile of the First Edition of 1765-1769. 4 Vols. London/Chicago: University of Chicago Press, 1979. Charleston Morning Post, 1786-1787. [Charleston] City Gazette, 1787-1820+. Merrill Jensen/John P. Kaminski/Gaspare Saladino (eds.), The Documentary History of the Ratification of the Constitution. 21 Vols. to date. Madison, WI: State Historical Society of Wisconsin, 1976ff. Linda G. DePauw (ed.), Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. 17 Vols. to date. Baltimore, MD: Johns Hopkins University Press, 1972ff. Merrill Jensen/Robert A. Becker (eds.), The Documentary History of the First Federal Elections, 17881790. Madison, WI: University of Wisconsin Press, 1976-1989. Library of Congress, Washington, DC. National Archives, Washington, DC. Jonathan Elliot (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution [...]. 5 Vols. Second Edition. Philadelphia: Lippincott, 1861. Worthington C. Ford/Gaillard Hunt/John C. Fitzpatrick et al. (eds), Journals of the Continental Congress, 1774-1789. 34 Vols. Washington, DC: Government Printing Office, 1904-1937. Julian P. Boyd (ed.), The Papers of Thomas Jefferson. 32 Vols. to date. Princeton, NJ: Princeton University Press, 1950ff.

Abbreviations and Short Titles

Letters of Delegates

XIII

Paul H. Smith (ed.), Letters of Delegates to Congress, 1774-1789. 26 Vols. Washington, DC: Library of Congress, 1976-2000. Madison Papers Robert A. Rutland/William T. Hutchinson/William M.E. Rachal et al. (eds.), The Papers of James Madison. 17 Vols. Chicago: University of Chicago Press/ Charlottesville, VA: University of Virginia Press, 1962-1991. MassArchives Massachusetts Archives, Boston, MA. MB Boston Public Library, Boston, MA. MHi Massachusetts Historical Society, Boston, MA. NHi New York Historical Society, New York, NY. Ratification Files Center for the Study of the American Constitution, Madison, WI. SCAGG [Charleston] South Carolina and American General Gazette, 1764-1781. SCDAH South Carolina Division of Archives and History, Columbia, SC. SCG [Charleston] South Carolina Gazette, 1732-1775. SCGCJ [Charleston] South Carolina Gazette and Country Journal, 1765-1775. SCGGA [Charleston] South Carolina Gazette and General Advertiser, 1783-1785. SCWG/CMP [Charleston] South Carolina Weekly Gazette, 17831786. SEG [Salem] Essex Gazette, 1768-1775. SGSC [Charleston] State Gazette of South Carolina, 17851793. StaL Thomas Cooper/David J. McCord (eds.), The Statutes at Large of South Carolina. 10 Vols. Columbia, SC: Printed by A.S. Johnston, 1836-1841. Thorpe, Federal and Francis N. Thorpe (ed. and comp.), The Federal and State Constitutions State Constitutions, Colonial Charters, and other Organic Laws of the States, Territories, and Colonies now or heretofore forming the United States of America. 7 Vols. Washington, DC: Government Printing Office, 1909.

1. Introduction

“Arma sunt necessaria. Vim vi repellere licet” read the sign that Charleston gunsmith James Ransier carried in the parade hosted by the city in honor of President George Washington.1 That a gunsmith would pronounce firearms necessary and useful does not seem the least bit surprising, but could rather be considered promotive of his business and trade. Yet, there was more to it: Ransier’s statement reflected a belief that was widespread among Americans of the seventeenth and eighteenth centuries: A belief that arms were necessary and useful tools. Most historians also accepted axiomatically the story that, in the words of military historian John Shy, Americans were A People Numerous and Armed.2 This interpretation remained valid until the year 2000, when Michael Bellesiles published his book Arming America.3 The historian challenged the widely held view that Americans in colonial and early national times were generally well armed and very well versed in handling all kinds of firearms. Bellesiles argued that his research had shown a very low incidence of firearms in probate inventories, supposedly proving his point that gun ownership was infrequent and that guns therefore could not have played a significant role in American culture at the time. Furthermore, Bellesiles claimed, this lack of guns continued until the last decade before the Civil War, at which time astute businessmen managed to create the image of the gun – particularly the revolver – as a necessary accessory of public life. At first, reviewers praised Arming America lavishly. John Grenier found that “[Michael Bellesiles] has virtually shattered every assumption that many historians accept and most gun enthusiasts hold dear concerning guns and their role in American history.”4 Edmund Morgan was similarly enthusiastic: He thought that “no one else has put [the facts] together in so compelling a refutation of the mythology of the gun or in so revealing a reconstruction of the role the gun has actually played in American history.”5 In 2001, Arming America 1 2

3 4 5

CMP/CG 21 February 1791, p. 3. The Latin translates as “Arms are necessary. Force may be repelled with force.” That was the title of a collection of essays edited by Shy in 1976. John W. Shy, A People Numerous and Armed: Reflections on the Military Struggle for American Independence (New York: Oxford University Press, 1976). Michael A. Bellesiles, Arming America: The Origins of a National Gun Culture, 1st ed. (New York: Alfred A. Knopf, 2000). John Grenier, “Review of Arming America: The Origins of a National Gun Culture,” Journal of Military History 65, no. 4 (2001): 1105f. Edmund S. Morgan, “In Love with Guns,” New York Review of Books 47, no. 16 (2000): 30.

2

Introduction

also won Columbia University’s prestigious Bancroft Prize, virtually guaranteeing a further positive reception. In the meantime, however, criticisms of Michael Bellesiles’s work began to surface. While many reviewers acknowledged the importance of the questions Bellesiles had asked, many took issue with his methods and his findings: “Bellesiles’s work evinces the narrative power and methodological weakness of a historian who has settled his thesis before conducting his research. As his critics have shown, Bellesiles methodically exaggerates and manipulates the evidence,” charged Michael Allen in his review.6 Furthermore, Bellesiles’s “specifics (especially his military history) are replete with irritating factual errors and debatable interpretations,” found reviewer Samuel Watson of the US Military Academy.7 James Lindgren and Justin L. Heather suggested that “[i]t would take anyone less than an hour in a good university library to be reasonably certain that several of Arming America’s claims about probate records were false.”8 They stated their opinion of Michael Bellesiles’s work unequivocally: “Without a database, without counts, mostly without sources, Bellesiles has not done a ‘study’ of probate records in the conventional sense.”9 Summarizing Arming America’s failings, James Lindgren asked in another article: How could Bellesiles count guns in about a hundred Providence wills that never existed, count guns in San Francisco County inventories that were apparently destroyed in 1906, report national means that are mathematically impossible, change the condition of guns in a way that fits his thesis, misreport the counts of guns in censuses or militia reports, have over a 60% error rate in finding guns in Vermont estates and have a 100% error rate in finding homicide cases in the Plymouth records he cites? We may never know the truth of why or how Arming America made such basic errors, but make them it did.10

At that time, what had begun as a debate about the politics and perceptions of history turned into a dispute about professional standards. Because some critics had raised credible claims of falsification and misrepresentation, Emory University first investigated the allegations internally, and then charged an external investigative committee with further inquiries. That committee, consisting of Stanley N. Katz, Hanna H. Gray and Laurel T. Ulrich reviewed the earlier allegations, conducted its own research and heard Michael Bellesiles on a number of occasions. 6 7 8 9 10

Michael Allen, “Review of Arming America,” Indiana Magazine of History 97, no. 2 (2001): 160. Samuel Watson, “Review of Arming America,” Kentucky Historical Society Register 99 (2001): 304. James Lindgren and Justin Lee Heather, “Counting Guns in Early America,” William and Mary Law Review 43 (2002): 1822. Ibid., 1826. James Lindgren, “Fall from Grace: Arming America and the Bellesiles Scandal,” Yale Law Journal 111, no. 8 (2002): 2232.

Introduction

3

When the committee presented its report in July of 2002, the result was less devastating than some of the original critiques had suggested, but it was damning nonetheless: They stated that “[e]very aspect of his work in the probate records is deeply flawed” and that he appeared “not to have been systematic in selecting repositories or collections of probate records for examination and his recording methods were at best primitive and altogether unsystematic.”11 In its conclusion, the committee stated that in some aspects, it had indeed found “evidence of falsification” and that Bellesiles had violated standards of professional historical scholarship.12 In consequence of the committee’s report, Bellesiles resigned his teaching appointment at Emory in October of 2002 and the Board of Trustees of Columbia University voted to rescind the Bancroft Prize for Arming America in December of the same year.13 Yet, despite the shortcomings of Arming America and its author, some reviewers maintained that the book was important in many respects. Bertram Wyatt-Brown pointed out that in its failure Arming America and Michael Bellesiles did the profession a service in identifying a scholarly desideratum: “Bellesiles compels us to re-examine how and why Americans have developed an enchantment with firearms, whenever the mania began.”14 While it is certainly in the eye of the beholder whether a “gun mania” exists in the United States today or has existed there in the past, there can be little doubt that guns had an impact upon American society before the nineteenth century. A short glance into the colonial and early national newspapers will suffice to convince a reader of the general and widespread presence of firearms. The pages of the papers abound with reports of hunting parties, militia musters, accidents and advertisements involving muskets, rifles, pistols and the like. Similarly, statute books and constitutional debate bear witness to the fact that many considered guns useful and necessary, but at times also dangerous: Laws prescribing and regulating the use and possession of firearms in some form or other were on the books in many colonies and states. An additional piece of evidence suggests that firearms had an important role in constitutional, legal and hence political culture of early American history: The Second Amendment to the United States Constitution, stating that “[a] wellregulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” seems to reserve a 11

12 13

14

Hanna H. Gray, Laurel T. Ulrich, and Stanley N. Katz, “Report of the Investigative Committee in the Matter of Professor Michael Bellesiles,” (Atlanta, GA: Emory University, 2002), 19. Ibid. Most recently, the entire case has been summarized in Peter Charles Hoffer, Past Imperfect: Facts, Fictions, and Fraud in the Writing of American History, 1st ed. (New York: PublicAffairs, 2004). Bertram Wyatt-Brown, “Going Off Half-Cocked: A Review Essay of Arming America,” Journal of Southern History 68, no. 2 (2002): 427.

Introduction

4

prominent place to a citizenry armed with guns. This does not in and of itself prove conclusively that firearms figured importantly in American political thought, but to me it presents a considerable stretch of imagination to think that such a provision would be in so prominent a place as the Bill of Rights unless charged with some particular significance. Furthermore, while the constitutional history of the Second Amendment – its precursors and legal ancestry – has been rather well established, the cultural history of these provisions has received far less attention. Constitutional provisions, however, do not exist in a vacuum: They take meaning from the societies and the cultures which enact, apply and preserve them. This application fills them with meaning. However, scholars have not given this aspect much attention yet, and the place of firearms in American culture of the eighteenth century is still largely undocumented. Even before the major troubles with Arming America’s methodology came to the foreground, reviewers had criticized that Michael Bellesiles was too preoccupied with numbers and gave cultural phenomena just scanty attention: His exposition of gun culture or even a definition of what he meant by it remained unclear throughout. As Jackson Lears charged in The New Republic, “[t]he important historical question is not how many Americans owned guns, but what guns meant to Americans, whether they owned them or not.” In Lears’ opinion, “the matter-of-fact literalism that pervades Arming America [sic]” was one of the major problems. Too strong a reliance on statistics alone “prevent[ed] Bellesiles from asking the larger cultural questions about guns and violence in early American history.”15 The question of what role firearms played in early America continues to agitate Americans today – evidenced most recently in the acerbic debate about Arming America and the often ad hominem criticism of Michael Bellesiles. The divisiveness of the issue rests especially in the fact that some models of constitutional interpretation rely upon the original intent of constitution-makers or the original meaning of constitutional provisions. In that situation, the historical context may have a considerable impact upon political, legal and constitutional decision-making today. Seen in such a light, the question of early American gun use and gun culture assumes a completely new dimension of meaning, in addition to the purely historical interest one might have. In the following pages, I will attempt to shed some light upon the forms of eighteenth-century American gun culture and try to answer some of those questions left unanswered as well as those newly posed in the debate about Arming America.

15

Jackson Lears, “The Shooting Game,” The New Republic, 22 January 2001, 35.

Introduction

5

1.1. Goals Presence of Guns In a first step, I will look at the presence of guns in eighteenth-century American society. While I agree with Jackson Lears that this is not the most important question to be asked, I find it relevant nonetheless. In and of itself, it does not tell us what guns meant to Americans, but it can add some detail to the gun culture question. For that purpose, I will use probate inventories, as have many other historians of material culture, in the attempt to quantify the presence of guns in early American society. In addition to developing an idea about how widespread firearms really were in eighteenth-century America, it will be interesting to see whether geographical location was a determinant in gun ownership. Furthermore, I will attempt to show whether slavery had an impact upon gun ownership patterns in American society. Quantitative methods have long been used in the social sciences as well as in the historical profession, but their acceptance in the latter has been neither cheerful nor universal.16 In 1970, Robert Swierenga termed the advent of quantification in the American historical profession “recent” and lamented the paucity of studies employing such methods.17 Nonetheless, by the 1990s quantitative historians were in many respects still fighting an uphill battle, frequently accused of “reductionism and oversimplification.”18 One of the central arguments in favor of quantification is greater precision in answering questions that suggest numerical answers: Percentages of soldiers who died from disease as opposed to those killed in battle may be easier and more convincing at the same time than just stating that more died in one way than in the other. Furthermore, quantitative measures allow for easier and more reliable generalization of statements while, often, at the same time the amount of material to be studied in order to arrive at such conclusions is reduced using samples.19 Yet another benefit of quantification is the possibility of detecting relationships between different variables that are invisible in a mere qualitative context: The dependence of one factor upon another might exist statistically, but might well be very slight. Even intensive reading might not unearth such

16

17 18 19

Konrad Hugo Jarausch and Kenneth A. Hardy, Quantitative Methods for Historians: A Guide to Research, Data, and Statistics (Chapel Hill, NC: University of North Carolina Press, 1991) 1. Robert P. Swierenga, ed., Quantification in American History: Theory and Research, [1st ] ed. (New York: Atheneum, 1970) vii. Jarausch and Hardy, Quantitative Methods for Historians 1. Ibid., 2f; Swierenga, ed., Quantification in American History: Theory and Research xxf.

Introduction

6

relationships especially with large sets of data that defy easy tabulation.20 All of these benefits are magnified today by the general availability of powerful personal computers and statistics software. One of the central elements of successful, meaningful, and reliable quantification is sampling. Sampling allows the historian to work not with an entire body of sources (called population for statistical purposes), thus saving time and money, and yet still enables him or her to make inferences about the body in its entirety. In many cases, especially with serial sources such as administrative records that exist in great abundance, sampling is the only way to arrive at adequate conclusions within an acceptable cost-benefit framework.21 However, in order to achieve meaningful analyses, the planning and design of the sample are of extreme importance. In a first step, the historian must decide which phenomenon he or she intends to measure. During such preliminary work, it is imperative to evaluate the quality of the raw data and establish its inherent biases. Otherwise, as William Aydelotte has observed, [t]here is a danger, in this kind of work, of a spurious precision – giving the results, to several decimal places of calculations based on incorrect original assumptions. If the classifications used at the start are worthless, the computations based upon them will be equally so, no matter how many times they are passed through the computer, and the situation will develop which is known in the trade as ‘GIGO’: ‘garbage in and garbage out’.22

Robert Fogel has argued very much in the same vein: Solid cliometric contributions are generally the product of painstaking searches of archives for primary data, mastery of the secondary literature, and immersion in the public and private documents. Such work is a precondition to the successful application of powerful general methods to specific historical situations. No amount of mathematical wizardry or computer magic can shortcut this process. Efforts to do so have led to embarrassing failures.23

20

21

22 23

Jarausch and Hardy, Quantitative Methods for Historians 2f; Willam O. Aydelotte, “Quantification in History,” in Quantification in American History: Theory and Research, ed. Robert P. Swierenga (New York: Atheneum, 1970), 8. Jarausch and Hardy, Quantitative Methods for Historians 68; Roger S. Schofield, “Sampling in Historical Research,” in Nineteenth-Century Society: Essays in the Use of Quantitative Methods for the Study of Social Data, ed. Edward A. Wrigley (Cambridge: Cambridge University Press, 1972), 146; You Poh Seng, “Historical Survey of the Development of Sampling Theories and Practice,” Journal of the Royal Statistical Society 114 (1951) gives an overview of the historical development of sampling. Aydelotte, “Quantification in History,” 13. Robert William Fogel and G. R. Elton, Which Road to the Past? Two Views of History (New Haven, CT: Yale University Press, 1983) 67.

Introduction

7

Thus, in the preparatory phase of a project, the historian must use his or her knowledge of the historical circumstances to predict possible problems. In a study of baptisms based upon a church register, for example, it must be kept in mind that not all children may have been baptized, nor all baptisms recorded.24 Furthermore, the register of an established church may not record christenings of dissenters. The example shows the problems that may arise from incomplete pre-evaluation of the records, for underregistration would be a very likely result in such a case. While it is often impossible to exclude the chance of underregistration, it is more important to state the fact that underregistration may have occurred. Thus, in order to avoid the pitfalls of quantitative method and at the same time keep the scope of the undertaking manageable, I will limit my inquiry to two states and their predecessor colonies. I decided in favor of Massachusetts and South Carolina, as in many respects – socially, economically, politically – they present the starkest contrast among the American states and colonies, while at the same time the availability of historical records is rather good in both. Various means have been suggested to obtain an idea of how prevalent ownership of firearms truly was in the colonial period. Militia censuses and probate inventories have been used before. A lack of transparent methods has often impeded the successful use of such records, as was evident in Arming America. However, historians of material culture have found that probate inventories, given useful sampling techniques and careful documentation, are a valuable source in establishing what kind of goods a household possessed. Even though it seems prudent to state that such inventories are not perfectly suited to answer the question, they may well be the only kind of source that answers the purpose anywhere near adequately. In addition, it has been observed that categories of sources with known biases can still be used profitably for some questions.25 Accordingly, I decided to sample probate inventories from both Massachusetts and South Carolina in order to determine the frequency with which guns appear in these lists.

Gun Culture The issue of American gun culture will be the focus of this study, even though the term is troublesome in many respects. This is the case because in current usage it seems to carry a negative connotation, but mainly because authors who 24 25

Ibid., 47. Fogel also shows, however, that a known bias of this sort does not necessarily invalidate the sources, but that often they may still be used profitably. Robert Fogel has argued that even sources that are known to underregister a certain variable can be used to establish a lower bound of how frequently certain characteristics appear. Ibid.

8

Introduction

have used it have failed to give adequate definitions of what they understand by it.26 Others saw “[t]he American gun culture [...as] a seemingly unified aggregation of individuals, mainly white, small-town males who evidence a longstanding personal attachment to guns, gun ownership and gun habits.”27 Yet other writers rejected the term entirely as “misleading,” without offering better solutions instead.28 The problem derives very much from the fact that even the definition of culture proper is very much disputed. Hubertus Busche has identified four basic, historically-grown meanings of “culture.” Busche argues that most modern historical and anthropological definitions of culture derive from the third of his four stages. There, the understanding of culture was eventually reassigned to encompass not only the result of cultivation of individuals, but of entire peoples and epochs, leading to an idea of “Kultur, in der man lebt” as a “charakteristische[r] Traditionszusammenhang von Institutionen, Lebens- und Geistesformen, durch den sich Völker und Epochen voneinander unterscheiden.”29 The definition of culture thus considerably widened, it became necessary to define more precisely what an individual author might or might not understand by using the term culture. Since the late nineteenth century, the number of ‘technical’ definitions of culture has proliferated. In 1952, anthropologists Alfred Kroeber and Clyde Kluckhohn, compiling a list of such definitions for their seminal study Culture: A Critical Review of Concepts and Definitions, counted 164 different ones. However, they argued, most practitioners of anthropology would subscribe to the following summary of the culture concept: Culture consists of patterns, explicit and implicit, of and for behavior acquired and transmitted by symbols, constituting the distinctive achievement of human groups, including their embodiment in artifacts; the essential core of culture consists of traditional (i.e. historically derived and selected) ideas and especially their attached values;

26 27

28

29

See for example Bellesiles, Arming America; Richard Hofstadter, “America as a Gun Culture,” American Heritage 21, no. 6 (1970). F. Frederick Hawley, “Gun Culture,” in Guns in American Society: An Encyclopedia of History, Politics, Culture and the Law, ed. Gregg Lee Carter (Santa Barbara, CA: ABC-Clio, 2002), I:243. William R. Tonso, Gun and Society: The Social and Existential Roots of the American Attachment to Firearms (Washington, DC: University Press of America, 1982) 15. Later, Tonso sees “gun culture” as a group: William R. Tonso, The Gun Culture and Its Enemies, 1st ed. (Bellevue, WA: Second Amendment Foundation: Distributed by Merrill Press, 1990). Hubertus Busche, “Was Ist Kultur? Erster Teil: Die Vier Historischen Grundbedeutungen,” Dialektik 1 (2000): 77. The German translates as: “‘...culture in which one lives’ as a ‘characteristic and traditional context of institutions, ways of living and intellectual pursuit that sets peoples and epochs apart.’”

Introduction

9

culture systems may, on the one hand, be considered as products of action, on the other as conditioning elements of further action.30

This definition – even though the authors avoided calling it thus – continues to be used today and anthropology textbooks introduce the concept of culture in very similar terms.31 Since then, however, anthropologist Clifford Geertz has contributed most influentially to the study of culture. Enlarging upon Max Weber’s definition “that man is an animal suspended in webs of significance he himself has spun,” Geertz assumed “culture to be those webs, and the analysis of it therefore not an experimental science in search of law but an interpretive one in search of meaning.”32 These webs of significance, argued Geertz, are reflected in human behavior and could be analyzed by observing such behavior: “Behavior must be attended to, and with some exactness, because it is through the flow of behavior – or, more precisely, social action – that cultural forms find articulation:”33 “Society’s forms are culture’s substance.”34 Historians differ from anthropologists, however, in that they rarely get to know the objects of their studies in person and rarely get to observe their behavior directly. Instead, they have to make do with the remnants of such historical behavior. In the words of Ernst Cassirer, “[w]hat the historian is in search of is rather the materialization of the spirit of a former age. He detects the same spirit in laws and statutes, in charters and bills of rights, in social institutions and political constitutions, in religious rites and ceremonies.”35 Such embodiments of past cultural forms and their interpretation are the historian’s daily business. However, even more than Geertz’s anthropology, historical analysis suffers from important limitations. Most importantly, it is inherently incomplete, and being an interpretation rather than a perfect picture, it must, of necessity be imprecise. Often, it arrives at informed speculation rather than scientific law: “Cultural analysis is (or should be) guessing at meanings, assessing the guesses, and drawing explanatory conclusions from the better guesses, not discovering the Continent of Meaning and mapping out its bodiless landscape.”36 30 31 32 33 34 35 36

Alfred L. Kroeber and Clyde Kluckhohn, Culture: A Critical Review of Concepts and Definitions (New York: Vintage Books, 1963) 357. See for example Daniel G. Bates and Fred Plog, Cultural Anthropology, 3rd ed. (New York: McGraw-Hill, 1990). Clifford Geertz, The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973) 5. Ibid., 17. Ibid., 28. Ernst Cassirer, An Essay on Man: An Introduction to the Philosophy of Human Culture (New Haven, CT/London: Yale University Press, 1944) 177. Geertz, The Interpretation of Cultures 20.

Introduction

10

Furthermore, culture and its analysis lack another property generally attributed to scientific precision, namely the possibility of ascertaining clear relationships of cause and effect. While scientific studies will frequently establish causal connections – action A necessarily triggered reaction B – that will hardly be possible in historical scholarship. Yet, the study of culture is not thereby rendered worthless, because it makes it possible to begin to understand human behavior: “As interworked systems of construable signs […], culture is not a power, something to which social events, behaviors, institutions, or processes can be causally attributed; it is a context, something in which they can be intelligibly – that is, thickly – described.”37 My idea of gun culture, then, is very much beholden to Clifford Geertz’s writings on and ideas of culture. In the following pages, I will attempt to describe such behaviors, customs, rites, ceremonies and institutions in the early United States and its predecessor colonies that were centered upon and grouped around firearms. What purpose did people ascribe to a duel and why did they continue to hunt long after their sustenance had ceased to depend upon it? What was it that they found interesting about the militia? Why did they cherish guns much more elaborate and ornate than would have been necessary or even practical for an everyday tool? Many other questions present themselves, yet these few suffice to suggest that there may have been more to firearms in eighteenth-century America than meets the eye. Indeed, I would suggest that what does not meet the eye may be the most interesting part of American gun culture in the late eighteenth century. Not outrageous crime is necessarily the most interesting aspect of gun culture, but the ordinariness, the regularities, the normality are. This is why I will not be looking at rare incidents of gun use, but rather at everyday patterns. It is in that sense that I apply the term gun culture in this study, in the sense of normalness of gun use. It is also there, Geertz has suggested, that the study of culture is most fruitful: “Understanding a people’s culture exposes their normalness without reducing their particularity. [...] It renders them accessible: setting them in the frame of their own banalities, it dissolves their opacity.”38 It is also in that sense that gun culture is most valuable as an analytical tool. Assuming, as does the Cassirer quote above, that normalness, traditions and customs become enshrined in constitutions, it is in gun culture thus understood that one must look for the roots of the Second Amendment. Without making any causal attributions, the gun culture of the American colonies will make the different influences that were fused into the amendment describable and understandable. It will serve as a background and as a mirror that reflects all of the possible understandings contemporaries might have had concerning firearms and all that was connected to them. In addition, without gun culture, the guar37 38

Ibid., 14. Ibid.

Introduction

11

antees of the amendment would not have been an issue; indeed, the amendment would never have been an issue: Gun culture was the fertile topsoil upon which an argument over the possession of firearms could and would flourish. Only because of preexisting gun culture did gun possession become at all politicized. Given the historical setting, it seems unlikely that a thick description of American gun culture according to Geertz may actually be possible. From extant materials, it may simply be impossible to witness, reconstruct and describe all the facets of guns and their meaning to eighteenth-century Americans. But, perhaps that is not necessary:“[I]t is not necessary to know everything in order to understand something,” wrote Geertz, and I agree.39 It should be possible to arrive at some educated guesses on the cultural context of the Second Amendment, a context in which its genesis, its roots and origins can be described intelligibly and intelligently.

1.2. Historiography As might be expected from a topic that continues to cause a stir in today’s America whenever touched, this is not the first time it has received scholarly attention. In the following paragraphs, I will attempt to present the most important of these works, which have either been central to the debate about or the concept of gun culture in American history. One of the first major studies on the history of firearms in America was Lee Kennett’s and James Anderson’s The Gun in America.40 Published in 1975, the authors traced the impact of firearms in American history from the earliest European settlements through the 1960s. Pointing out how the wide availability of guns at the beginning of the colonial period derived from the sheer necessity of providing a makeshift defense force for the settlements, Kennett and Anderson go on to show how the combination of British commonwealth ideas and the image of the invincible yeomanry came to be at the basis of the Second Amendment to the Constitution. Bringing their analysis forward to the second half of the twentieth century, the authors concluded that the role of the gun in American society had become ambiguous: No longer a symbol exclusively of security through citizen soldiers and the posse comitatus, it had become associated with crime and other undesirable effects, without losing the positive connotations it had heretofore carried. So far, Michael Bellesiles has been one of not too many writers to approach the field of American gun culture in Arming America. More specifically, he is the only one to have done so for the eighteenth century. However, a number of studies touch upon one aspect of the question or another. Probably the first to 39 40

Ibid., 20. Lee B. Kennett and James L. Anderson, The Gun in America: The Origins of a National Dilemma (Westport, CT: Greenwood Press, 1975).

12

Introduction

write about gun culture in the United States was Richard Hofstadter in his 1970 article “America as a Gun Culture.”41 In that essay, Hofstadter argued that “the United States is the only modern industrial nation that persists in maintaining a gun culture.”42 Hofstadter traces the longevity of historic use of guns to the “anti-militaristic traditions of radical English Whiggery, which were taken over and intensified in colonial America.”43 In his opinion, the Whig idea of an armed yeomanry amplified traditions of gun use and kept them palatable and even desirable to modern-day Americans. For Edmund Morgan, guns served essentially the same purpose that Hofstadter diagnosed. In his study Inventing the People, he suggested that rituals surrounding arms served very much to establish and support popular sovereignty. Generally, argued Morgan, the propertied classes used the image of the armed yeoman farmer as an “expression of solidarity among landowners.”44 Additionally, the militia was a political “organizing unit” that was essential in gaining support of local populations in that it allowed a hierarchical society to harmonize with a population that set great store in its (mythical) egalitarianism. Roger Lane argued much in the same direction: “The United States was,” in his view, “in fact born a ‘gun culture,’ its self-image institutionalized into the Second Amendment and justified by an ideology which associated freedom with armed self-defense, as at Bunker Hill.”45 Lane argued that gun culture was closely linked to vigilantism, in which the same arms were used for legal as well as extra-legal violence. Hofstadter and Lane have in common that both see gun culture, which neither defines more closely, as an undesirable phenomenon. William Tonso challenged Hofstadter’s argumentation: In his book Gun and Society, he cites examples of Germany, Switzerland, France and Australia which suggest that the US could hardly be said to be alone in maintaining a gun culture.46 Furthermore, Tonso thought that “gun culture” was too misleading a term to be useful, proposing to use “popular attachment to firearms” instead.47 This does not really approach the problem of imprecise definitions at all and is hence disappointing.

41 42 43 44 45 46 47

Hofstadter, “America as a Gun Culture.” Ibid., 4. Ibid., 82. Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America, 1st ed. (New York: Norton, 1988) 167. Roger Lane, “Criminal Violence in America: The First Hundred Years,” Annals of the American Academy of Political and Social Science 423 (1976): 2. Tonso, Gun and Society: The Social and Existential Roots of the American Attachment to Firearms 5-7. Ibid.

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13

In his 1983 dissertation, Donald Brown looked at another timeframe entirely.48 Concentrating on the decades immediately following the Civil War, Brown investigated the origins of legislation attempting to curb the carrying of guns in some western states. Brown argued that, after the Civil War, in the cattle towns of the West, guns were on the one hand seen as quite necessary in fighting Native Americans and outlaws and on the other hand as useful tools in conflict resolution. Thus, gun violence became rampant and the realization began to grow among significant segments of the population that only concerted action could solve the problem and pacify the western communities. Thus, it was in the West, nowadays seen as prototypical of a society used to being armed, that legal limitations of gun-carrying made their first appearances. For the Second Amendment, the situation is very different. Scarcity of studies is not the problem here but rather the scholar faces a considerable embaras de richesse: Countless studies have been published on the origins and constitutional roots of the provision. There is no consensus at all on what the amendment means, even though its history is rather clear. Two diverging schools of thought have developed in the field. The so-called individualists see in the amendment a constitutional guarantee for almost any gun use one could imagine and in their opinion it is almost entirely beyond the reach of government regulation. The other group, mostly called collectivists, argues that the Second Amendment is a limit upon federal powers in order to safeguard the rights and powers of the states, most particularly the states’ authority over their militia. They generally argue that the clause is not a blank check for individuals to arm themselves to the teeth, but rather a privilege of the people collectively to defend themselves and the state against domestic as well as foreign dangers.49 In the collectivist logic, resistance against a tyrannical government is also thinkable, but it would have to rely upon broad popular support in order to be legitimate. The literature upon the interpretation of the Second Amendment is prolific to the point of being unmanageable. Especially contributions to the various American law reviews are not only numerous, but also highly repetitive. But since the interpretation of the Amendment and its meaning in today’s jurisprudence is not the focus of this study, I will not delve into that field any further. 48

49

Donald Curtis Brown, “The Great Gun-Toting Controversy, 1865-1910: The Old West Gun Culture and Public Shootings (Colorado, Kansas, New Mexico, Oklahoma, Texas)” (Ph.D. Dissertation, Tulane University, 1983). For more on the two schools see Carl T. Bogus, “The History and Politics of Second Amendment Scholarship: A Primer,” in The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms, ed. Carl T. Bogus (New York: New Press, 2000); Gaspare J. Saladino, “The Bill of Rights: A Bibliographic Essay,” in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1992), 498-99; Robert J. Spitzer, “Lost and Found: Researching the Second Amendment,” in The Second Amendment in Law and History, ed. Carl T. Bogus (New York: New Press, 2000).

14

Introduction

Instead, I will continue by presenting the body of sources upon which I intend to base this study.

1.3. Sources As I have suggested above, any “materialization of the spirit of a former age” may be of value in an attempt to paint a picture of that former age. In the case of guns and gun culture, a wide variety of sources seems suitable to gain some insights into the meanings guns carried for Americans of the eighteenth century. First, the probate inventories should help to establish whether guns were a widespread possession among Americans in the eighteenth-century. Probate records in general are a valuable source and have often been used by historians of material culture. Probate inventories are itemized lists of a decedent’s possessions. These were usually compiled by the neighbors of the deceased at the order of a probate judge. They are often very detailed and they include valuations of the individual items. Even though there does not seem to have been a prescribed form, most inventories are very similar to one another. In a header, they mostly include a statement that the following is “a true and perfect inventory,” the decedent’s name, his place of residence and his profession, followed by the list of his possessions, the total value, again followed by the compilers’ and witnesses’ signatures and a date. In the record books (where inventories were often copied by a clerk), they are often followed by an attestation that the administrators made oath as to the truth of the inventory. For the entire colonial period, such inventories exist by the thousands. In this study, the records of Massachusetts and South Carolina are of particular interest. In Massachusetts, great amounts of probate records have survived. Created by county officials, they largely still repose in the individual county court houses, though most have been microfilmed by the Genealogical Society of the Church of Jesus-Christ of Latter-Day Saints (LDS). These microfilms are available at the Massachusetts Archives in Boston (though the original documents are owned by the Massachusetts Judicial Archives), the Boston Public Library and many branches of the LDS all over the United States. The probate records of South Carolina were kept centrally in Charleston for most of the eighteenth century. Unique among the colonial administrations in what would become the United States, South Carolina had vested the powers of Ordinary in the Governor and actually executed them there. The colony did not create the localized structure of probate administration that prevailed both in the other colonies and in Britain. Thus, early inventories are often recorded among the Miscellaneous Records (Main Series): Recorded Instruments of the Secretary of State rather than in separate probate record books. After 1736, the secretary kept dedicated volumes for probate records. Following a failed attempt to decentralize the administration of probate, it took until 1785 for courts of ordinary

Introduction

15

in the counties to take over the business of probate administration from the Governor and for records to be kept in the individual courts. Most of the South Carolina probate records have been microfilmed, partially by the LDS. Importantly, many were also transcribed by the Works Progress Administration (WPA) during the New Deal: These transcripts, also held by the South Carolina Archives, facilitate the access considerably, as some of the films from the early stages of microfilming are of very problematic quality and often the original, manuscript records have deteriorated massively since the 1930s. Thus, whenever possible, I have used the WPA transcripts for this study. Those who handled and manufactured guns, I had assumed, might also be an interesting source as to the praxis of their use and their symbolic value. In order to obtain a closer look at gunsmiths, I compiled a list of those smiths who worked in either South Carolina or Massachusetts during the eighteenth century from James Whisker’s Arms Makers of Colonial America.50 With that list in hand, I proceeded to mine the various indices, inventories and catalogs of archival holdings, finding but few collections pertaining to those gunsmiths. Even those few collections yielded very little valuable information about gunsmiths and their trade, being mostly financial business records. Overall, that category of sources proved rather disappointing. The collections of colonial laws were another kind of source that I hoped would yield some interesting findings. In both colonies, collections of statutes were published at some point, though only in the 1830s in South Carolina.51 Furthermore, laws passed in each session by the legislatures were customarily published as pamphlets or in local newspapers. These session laws are important because they also contain temporary laws and acts repealed or expired later, in which cases they would not be found in consolidated codes. The colonial session laws of both states are available on microfiche in the Law Library of Congress. Perusal of these records brought forth a considerable number of enactments pertaining to gun use in colonial societies. Travel accounts are yet another genre of sources that can shed light upon a society’s customs, as travelers take note and record whatever they find peculiar about the community they experience.52 For America in the seventeenth and eighteenth century the genre was particularly important: As religious and moral persuasions disdained fictional writing as “at best a waste of time and at worst 50 51 52

James B. Whisker, Arms Makers of Colonial America (Selinsgrove, PA/London: Susquehanna University Press/Associated University Presses, 1992). South Carolina. Laws statutes etc., Thomas Cooper, and David J. McCord, The Statutes at Large of South Carolina (Columbia, SC: A. S. Johnston, 1836). Robert Bingham Downs, Images of America: Travelers from Abroad in the New World (Urbana, IL: University of Illinois Press, 1987) 1. It is also important to note that travel accounts could lead the way to literary and commercial success. Charles Batten, Pleasurable Instruction: Form and Convention in Eighteenth-Century Travel Literature (Berkeley, CA: University of California Press, 1978) 1-3.

16

Introduction

sinful lying,” travel writing’s perceived veracity made it an accepted form of literature.53 It provided, in Charles Batten’s words, “pleasurable instruction.”54 Accordingly, “[t]he best travel testimony combines insight and evidence, imagination and science.”55 One might expect that differences from their own customs would attract a travel writer’s particular attention, but it does not seem inconceivable that similarity of social and cultural practices would also be noted:56 Having traveled far from home in the expectation of finding things much different, I would expect similarity to be noteworthy in itself. North America was a popular subject of travel writers from the earliest colonial times. In the early period of colonial settlement, conquerors and proprietors had used travel accounts for purposes of advertisement, seeking to attract settlers with their optimistic stories of social and economic opportunity.57 Writers were also impressed with the natural diversity and opulence, culminating in a number of natural histories such as William Bartram’s Travels or John Lawson’s History of North Carolina.58 Significantly, that category of sources is much more plentiful for the southern colonies than for New England in the eighteenth century. This may be due to the fact that by that time the New England colonies were not only rather well settled and not as urgently in need of European settlers, but, being royal colonies, they may not have had as keen an interest in attracting new settlers as had the owners of the southern colonies who wanted to reap a material profit from their engagement there.59 Travel writings also served missionary ends. By describing the seemingly depraved status not only of the Native American population, but also occasionally of the backcountry settlers who often lived beyond the reach of constituted colonial authority, such travelogues supported not only the extension of colonial and, later, federal institutions and infrastructure to the backcountry but also the

53 54 55 56 57 58

59

Ibid.; Larzer Ziff, Return Passages: Great American Travel Writing, 1780-1910 (New Haven, CT: Yale University Press, 2000) 7. Batten, Pleasurable Instruction 119. Harry Liebersohn, Aristocratic Encounters: European Travelers and North American Indians (Cambridge/New York: Cambridge University Press, 1998) 8. Downs, Images of America 6. Kevin J. Hayes, ed., Itinerant Observations in America: Edward Kimber (Newark, NJ/London: University of Delaware Press/Associated University Presses, 1998). William Bartram, Travels through North & South Carolina, Georgia, East & West Florida, the Cherokee Country (New York: Penguin Books, 1988); John Lawson, History of North Carolina Containing the Exact Description and Natural History of That Country, Together with the Present State Thereof, and a Journal of a Thousand Miles Traveled through Several Nations of Indians, Giving a Particular Account of Their Customs, Manners, 2d ed. (Richmond, VA: Garrett and Massie, 1951). Furthermore, the southern colonies mostly advertised religious freedom in order to attract European emigrants. Given the religious roots of the New England colonies, that probably was not an option in New England.

Introduction

17

propagation of Christianity to counter the perceived lack or deterioration of morals. Travel accounts were a widely-published genre of literature that became even more significant during and after the American Revolution: As they faced a common threat from Great Britain and attempted, more or less successfully, to meet it by common measures, the colonies and the colonial elites realized that it might be interesting to get to know the other colonies better in order to foster mutual understanding and friendship where intercolonial rivalries over trade and territory had long prevailed. In that endeavor, travel writing was a very helpful device, as it could be used to stress the essential similarity, the Americanness of all colonists. In many respects, diaries are very similar to travel writings. They record an individual’s experience with and views of society, his thoughts, feelings and opinions. However, they do so in the writer’s home environment as well as while away traveling. Thus, they are probably less purpose-driven than most travel writing, which is usually intended for publication. Moreover, in a society of very limited mobility, diaries deliver an extended account of life in a single place, a feature that a travelogue, by its very definition, cannot supply. As such, they are invaluable records of social life, social and cultural praxis in a closely defined locale. In that respect, they are most rewarding for the historian, as they are more likely to record everyday occurrences and repeating patterns than a traveler’s description of something he or she would, from the nature of traveling, only have witnessed for a brief period. Diaries are a very versatile source, the value of which has been acknowledged in many studies on various topics. They are very plentiful for the eighteenth century in the American colonies and many have been published. Especially in the history of gender, they have long been important in elucidating those aspects, often of women’s lives, which are more or less inaccessible from other sources. In connection with the aspect of gender history, they have been mined successfully in writing the history of everyday life. For this reason, everyday routines of gun use, I hope, would somehow be reflected in these diaries. During the eighteenth century, the American colonies developed a thriving print culture. Centered in and around Boston, Philadelphia and New York, printers supplied colonial Americans with books, pamphlets, magazines and newspapers of all sorts. An intensive search of Charles Evans’ American Bibliography unearthed a considerable number of works that have a bearing on the historical perception of American gun culture.60 These include innumerable works that could be classified as manuals or as promotional writings for various applications of firearms. 60

Charles Evans, American Bibliography: A Chronological Dictionary of All Books, Pamphlets, and Periodical Publications Printed in the United States of America from the Genesis of Printing in 1639 Down to and Including the Year 1820, 14 vols. (New York: P. Smith, 1941).

18

Introduction

Among the many prints published in eighteenth-century America are a remarkable number of arms manuals. Frequently written for the benefit of the militia and its officers, they generally devoted space to the care, loading and firing of muskets. Handbooks such as Timothy Pickering’s An Easy Plan of Discipline for a Militia is only one of many publications of that kind in the early stages of the Revolution, and many others, original works as well as reprints of British originals and even translations of foreign works, were published throughout the century.61 Also, there were works on hunting, both manuals and literary treatises, the role of guns in education, medical tracts dwelling on the treatment of gunshot wounds as well as descriptions of duels, often criticizing the dubious morality of such combats and their participants. One major part of eighteenth-century print culture were newspapers, which gained wide circulation in the colonies. American newspapers in the eighteenth century were in many respects very similar to newspapers today. They contained a mixture of news, both local and from abroad (often under the heading “Ship News”), reports of political and social activity, opinion pieces and letters as well as advertisements for local businesses.62 As such, newspapers constitute an invaluable source: They record not only all of the issues that other publications would cover, but also small occurrences, accidents, and local politics. Newspapers often allow historians to make inferences about how news traveled, as they would frequently reprint items from other papers.63 Many different categories of questions – from colonial politics to burial rites to the stock of local merchants – can be answered with the help of newspapers. Newspapers may be the single most important source for cultural historians of that era. Or, to say it in the fitting words of Charles Clark: Thus the newspapers more than any other single printed vehicle of the eighteenth century reflected the ‘collective mentality’ of the age. In America, they served no more important function than to collect, embody, and diffuse to a broader and receptive population the shared beliefs that gave coherence to provincial culture.64

61 62

63 64

Timothy Pickering, An Easy Plan of Discipline for a Militia (Salem: Printed by Samuel and Ebenezer Hall, 1775 (=Evans 14404)). The geographic distribution of news coverage changed over time. Early in the century, newspapers covered primarily European and British events rather than local occurrences. After about 1740, the focus changed to cover more North American events. Charles E. Clark, The Public Prints: The Newspaper in Anglo-American Culture, 1665-1740 (New York: Oxford University Press, 1993) 215f and 42. Compare the content breakdown of colonial newspapers supporting this thesis in David A. Copeland, Colonial American Newspapers: Character and Content (Newark, NJ: University of Delaware Press, 1997) 285-99. As papers would often, though by no means always, acknowledge the origin of their news items, they can often be traced from city to city and from paper to paper. Clark, The Public Prints 257.

Introduction

19

Boston’s first newspaper, the News-Letter was founded in 1704.65 By midcentury, the city had four weekly newspapers; by the 1770s, it had tri-weekly papers and the Polar Star, the first daily paper, appeared in 1796.66 The first newspaper outside Boston was the Essex Gazette, a weekly issued in Salem from 1768 onward. However, even before independent newspapers existed all over the colonies, the city papers were circulated well beyond the town limits. In that way, even remote places profited from the existence of the metropolitan newspapers.67 South Carolina was less endowed with papers. Only one existed at midcentury, the weekly South-Carolina Gazette, founded in Charleston in 1732. Charleston had numerous tri-weekly papers by 1780 and two dailies by 1786. The situation of the colony’s newspapers strongly underlines the political, social and economic concentration on Charleston. While that city had a number of daily papers a decade before Boston got its first, it took quite a while longer in South Carolina for newspapers to be established outside the provincial capital. Apart from temporary relocations while the British occupied Charleston during the Revolution and a few abortive ventures in different locations, the first paper to be published outside Charleston was likely the South Carolina Independent Gazette, which appeared in Georgetown from 1791 forward.68 Yet another body of sources consists of such material as will illuminate the impact of gun culture on the process of constitution-making. While some of the above, prints and newspapers in particular, will answer that purpose, it will be necessary to cast a somewhat wider net. The journals of the constitutional convention, as well as private papers of some of the participants have been available in print for a long time. The history of the ratification of the constitution and the Bill of Rights is the focus of the seminal Documentary History of the Ratification of the Constitution, which is being edited at the University of Wisconsin – Madison.69 The Documentary History brings together, in completeness heretofore unknown, documents that illustrate the various influences that shaped political rhetoric and decision-making over the constitution. The Documentary History contains official documents such as parliamentary and convention journals, public commentary like pamphlet literature and news reports, as well as 65

66 67 68 69

Ibid., 79. Two other publications, Present State of New-English Affairs and Public Occurrences had existed before, in 1689 and 1690, respectively. Brigham considers the former a broadside rather than a newspaper and the latter, the first real newspaper, was quickly suppressed. See Clarence Saunders Brigham, History and Bibliography of American Newspapers, 1690-1820: Including Additions and Corrections, 1961 (Hamden, CT: Archon Books, 1962) I:339ff; Clark, The Public Prints 79ff. Information based on Brigham, History and Bibliography of American Newspapers I:271-421. Clark, The Public Prints 87. Brigham, History and Bibliography of American Newspapers II:1023-53. Merrill Jensen, John P. Kaminski, and Gaspare J. Saladino, The Documentary History of the Ratification of the Constitution (Madison, WI: State Historical Society of Wisconsin, 1976ff).

20

Introduction

private writings – diaries, correspondence, notes of parliamentary or convention debates etc. – bearing on the constitution, its ratification and the addition of a Bill of Rights. In addition to the volumes of the Documentary History – 21 of 27 projected volumes have been published – the files of the Ratification Project contain material for the forthcoming volumes. These files of manuscript sources, newspaper clippings, and prints have been collected from many different archives, libraries, historical societies and even private owners all over the United States and Europe. These files allow access to sources of a much greater variety and compass than would otherwise have been possible, as the availability of copies from so many repositories in a single location so much reduces the expense of time and money otherwise associated with studying them. The published volumes, primarily the Constitutional Commentary volumes as well as those covering the ratification in Massachusetts, will be of considerable import in tracing the impact of gun culture in the political realm. The volumes for South Carolina, however, have not been published yet, nor have those pertaining to the writing and ratification of the Bill of Rights. In these cases, this study is based on the unedited materials from the Ratification Project files. I will not take the preliminaries any farther at this moment, but rather proceed with the consideration of the historical background of my question. Thus, the next chapter will take an in-depth look at the societal developments of Massachusetts and South Carolina during the eighteenth century.

2. Backgrounds: Historical, Social, Cultural

The effort to establish historical truths itself fosters civility. Since no one can be certain that his or her explanations are definitively right, everyone must listen to others. All human histories are provisional; none will have the last word. (Joyce Appleby/Lynn Hunt/Margaret Jacob, Telling the Truth about History. New York: Norton, 1994, 10.) For conversing with those of past centuries is much the same as travelling. It is good to know something of the customs of various peoples, so that we may judge our own more soundly and not think that everything contrary to our own ways is ridiculous and irrational, as those who have seen nothing of the world ordinarily do. (René Descartes, Discourse on the Method, in: The Philosophical Writings of Descartes. Translated by John Cottingham/Robert Stoothoff/Dugald Murdoch. Cambridge: Cambridge University Press, 1985, I:113f.)

2.1. The Beginning of the Eighteenth Century Massachusetts At the beginning of the eighteenth century, Massachusetts was a solidly established colony. It had grown considerably during the preceding 70 years and was no longer a remote and forbidding outpost of the British empire. In 1700, the colony had about 55,000 inhabitants, its main city, Boston, probably had between 5000 and 6000 residents.70 Nonetheless, the colony’s existence seemed precarious at times. During Queen Anne’s War – the colonial counterpart of 70

United States. Bureau of the Census., Historical Statistics of the United States, Colonial Times to 1970, Bicentennial ed. (Washington, DC: U.S. Department of Commerce, Bureau of the Census: for sale by the Superintendent of Documents, U.S. Government Printing Office, 1975) II:1168, Series 1-19. Numbers for the colonial population are often difficult to establish before the federal census. The size of Boston is an estimate from its militia census, which lists 954 militiamen for 1690. Evarts Boutell Greene and Virginia D. Harrington, American Population before the Federal Census of 1790 (Gloucester, MA: P. Smith, 1966) 19. The size of the population at large was taken by the colonial authorities to be between 5 and 6 times the number of militiamen. See Ibid., 13. and J.H. Benton, Early Census Making in Massachusetts, 1643-1765. (Boston, MA: Goodspeed, 1905) 22. The number of “14,300 souls” supposedly living in Boston in 1664 strikes me as considerably too high, as in the census of 1765 the city totaled 15,520 inhabitants. Greene and Harrington, American Population before the Federal Census of 1790 19 footnote b, 22.

22

Backgrounds: Historical, Social, Cultural

Europe’s War of the Spanish Succession – Native American and French attacks threatened the prosperity and security of many settlements, particularly in the northwestern parts and in Maine. This war, however, was only a prelude to fierce fighting for another half century, at times on a larger scale with European conflicts, at others like Governor Dummer’s War between 1722 and 1725 on a more local level.71 Economically, Massachusetts had remained very largely dependent on its agriculture. Most inhabitants lived on farms and depended on them for their livelihood. Most farmers were subsistence farmers. Whatever they produced in corn, fruit and livestock was primarily for their own consumption, yet some cattle were already being raised for the market.72 Some other commodities, such as butter and cheese also reached the market, although surpluses were rare and largely limited to areas like the Connecticut River valley, where richer soils allowed for better productivity.73 Poor quality of land was not the only problem Massachusetts farmers faced, for even that land was becoming increasingly scarce. Because of the steady growth of colonial society, most free land in the old coastal communities had been settled and moving westward to claim and open up new land was often the only option for both new immigrants and the offspring of eastern farmers who wanted to establish their own household and farm. Furthermore, the prevalence of partible inheritance, where all sons could expect to obtain land from their fathers’ estates, led to a shrinking size of family farms, which were increasingly unable to yield enough to feed a family.74 At the same time, however, occupations other than the traditional subsistence farmer were coming to the fore in the Bay Colony. Tradesmen and small merchants were becoming an important element of the provincial economy. Not only could these occupations provide a livelihood for families for whom land might not be available, but blacksmiths, carpenters, leatherworkers and like craftsmen also satisfied the demand for tools and goods which could not be made by the farming families themselves. Furthermore, the demand for luxury items also increased. Not only did colonial households of the period show increasingly elaborate furniture, but books, silverware and other decorative items also began to make their appearance as the immediate subsistence was more and more secure and resources became available for consumption.75

71 72 73 74 75

Benjamin Woods Labaree, Colonial Massachusetts: A History (Millwood, NY: KTO Press, 1979) 203f. Ibid., 146. Ibid., 148. Ibid., 148-50. Ibid., 152ff, 64, 85-87; Gloria L. Main, “The Distribution of Consumer Goods in Colonial New England: A Subregional Approach,” Dublin Seminar for New England Folklife Annual Proceedings 12 (1987); Gloria L. Main, “The Standard of Living in Southern New

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23

Small merchants also supplied many of those goods which could not be produced autonomously on the farms or in the farming communities. West Indian rum, British manufactured goods like paper, iron and hardware as well as East Indian tea were among the most important commodities on sale. In addition to these retail services, many shopkeepers also provided an early form of bank service, which included credit and even money transfers with other merchants both within the colony and – though this primarily applied to the major wholesalers in the coastal towns – even abroad.76 The maritime industries were also of growing importance to the provincial economy of Massachusetts. While subsistence fishing had been practiced since the beginnings of the colonial venture, it was now increasingly undertaken for profit. Spain and Portugal, especially, but also the sugar islands in the West Indies – where even low quality catches could be sold to feed the slaves – were a good market for New England fish, while London was greatly interested in whale oil and bone.77 Fishing was not the only maritime industry in Massachusetts. Shipbuilding was a mainstay of the Massachusetts economy in the early eighteenth century. Producing over 90% of all shipping tonnage built in the North American colonies, Massachusetts was one of the main shipbuilding centers of the British Empire at that time.78 Part of that was due to wartime losses: During King William’s War and Queen Anne’s War, British shipping had suffered very badly at the hands of French privateers. British shipyards alone were unable to replace these losses, creating a boom for colonial shipyards with additional capacities. Furthermore, colonial ships were much cheaper to construct – as much as 40% –, with virtually inexhaustible supplies of timber available in the relative vicinity of the colonial seaside towns.79 Additionally, Massachusetts ships were an important means of evening out the unfavorable balance of trade. Ships built in

76 77

78

79

England, 1640-1773,” William and Mary Quarterly 45, no. 1 (1988): particularly 128f and Table VII. Labaree, Colonial Massachusetts 153f. Ibid., 155-57; James A. Rawley and Stephen D. Behrendt, The Transatlantic Slave Trade: A History, Rev. ed. (Lincoln, NE: University of Nebraska Press, 2005) 298f. The importance of the New England fisheries is amply demonstrated by the fact that almost all treaty negotiations between the colonial powers and between the US and Britain after the revolution contained minute provisions on the fishing rights in North Atlantic waters. Harold Adams Innis, The Cod Fisheries: The History of an International Economy, Rev. ed. ([Toronto]: University of Toronto Press, 1954) 160f, 210. See also statistics on the fisheries and whaling in: United States. Bureau of the Census. Historical Statistics of the United States, Colonial Times to 1970 II:1195, Series Z 530-538. Joseph A. Goldenberg, Shipbuilding in Colonial America (Charlottesville, VA: Published for the Mariners Museum Newport News, Virginia, by the University Press of Virginia, 1976) 40. Ibid., 31-33.

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the colonies often sailed to Britain only to be sold there to pay for shipments of British goods.80 Naval stores provided another highly lucrative trade for Massachusetts. During the seventeenth century, the supply of masts, ship timbers, tar, resin and similar goods had become increasingly precarious as British forests could not keep up with the burgeoning demand of the Royal Navy for materials. For a time, Scandinavia had been a primary supplier, but that was an expensive option that did not agree with mercantilist doctrine. The seemingly inexhaustible forests of New England were another option, and Parliament required the production of masts and offered bounties for many other necessities.81 Trade became an increasingly significant factor in the colonial economy. The coastal trade with other British colonies probably comprised the lion’s share of maritime trade, but transatlantic and Caribbean trade grew in importance. New England merchants were the principal suppliers of the British sugar islands, where they carried food, fuel and lumber, and from where they exported sugar, molasses and rum. From the southern mainland colonies, New Englanders exported staple crops – mainly tobacco, indigo and rice – to Britain’s market, being successful to the point of obtaining a virtual monopoly in the carrying trade of those colonies.82 Another ‘commodity’ Massachusetts merchants frequently and widely traded in was slaves. American slavers were generally based in the northern colonies, particularly in Newport in Rhode Island, but Boston and Salem were also very significant and very early centers of the slave trade. While the Bay Colony’s own slave imports were insignificant,83 its merchants played a major role in supplying both the Caribbean islands as well as the southern mainland colonies.84 The fact that shipbuilding, trade goods, capital and maritime expertise existed in abundance doubtlessly facilitated this trade. Another issue began to surface around the beginning of the eighteenth century that had a major impact on Massachusetts’ economy and politics, namely the issue of currency and coinage. Due to its unfavorable balance of trade with Britain, Massachusetts experienced a permanent shortage of specie, which was being drained to pay for the goods the colonists imported from Britain. This lack of money stifled trade within the colony, as it made anything 80 81 82 83

84

Ibid., 23, 40f. Labaree, Colonial Massachusetts 93. Ibid., 154f. Massachusetts taxed imported slaves after 1704, in order to keep their number small and avoid the mixing of the races. Rawley and Behrendt, The Transatlantic Slave Trade: A History 272. See also Philip D. Curtin, The Atlantic Slave Trade: A Census (Madison, WI: University of Wisconsin Press, 1969) 143. Rawley and Behrendt, The Transatlantic Slave Trade: A History 297-304; Hugh Thomas, The Slave Trade: The Story of the Atlantic Slave Trade, 1440-1870 (New York: Simon & Schuster, 1997) 259ff.

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25

beyond barter and exchange difficult or even impossible. In order to remedy this money shortage, the provincial government encouraged the importation of specie into Massachusetts by legislating favorable exchange rates. As some colonies profited from this practice to the apparent detriment of others in which Britain had greater financial interest, the government in London attempted to ban the artificial inflation of monetary values. To that end, Queen Anne issued a proclamation fixing the value of various currencies and coins which circulated in the colonies – primarily the Spanish silver dollar or Peso de Ocho Reales – depending on their content of silver.85 Generally, however, the colonies ignored the royal command just as much as the parliamentary statute passed to improve enforcement.86 The value of coinage was not the only monetary issue that caused friction between the government in London and the Bay Colony. Paper money also proved to be a continual bone of contention. In order to finance King William’s War, Massachusetts had first emitted a paper currency in 1690. In order to be able to make payments for the war before taxes could be voted and collected, the government had resorted to what was in effect a loan: Notes were issued and were to be redeemed over a specified period, thus anticipating tax income.87 The notes had another advantage: While the shortage of coins persisted, they were generally used and circulated instead of specie to pay for goods and taxes. Thus, for an increasingly complex economy, paper currency proved a blessing in that it actually allowed the exchange of goods to function.88 By 1700, religion was still a strong factor in the daily lives of the colonists in Massachusetts. In 1692, the belief that the devil was at work in the village of Salem had led to a witch hunt of several months. The court convened to investigate the matter convicted numerous men and women of witchcraft, 19 of whom were executed. Even though all victims were eventually freed, pardoned or exonerated, the episode shows very clearly that prospects of hell and salvation, and the belief in the battle between God and the devil still held wide sway.89 As for daily religious life, the old orthodoxy of the Puritan regiment had been considerably relaxed and the half-way covenant was very widespread. Participation in communion, formerly limited to full members of the church, often was not dependent any more on a conversion experience and an examination by 85

86 87 88 89

Leslie V. Brock, The Currency of the American Colonies, 1700-1764: A Study in Colonial Finance and Imperial Relations, Dissertations in American Economic History (New York: Arno Press, 1975) 7-9; Curtis P. Nettels, The Money Supply of the American Colonies before 1720 (Madison, WI: 1934; reprint, New York: A.M. Kelley, 1964) 232-43. Ibid., 243ff. Brock, The Currency of the American Colonies, 1700-1764 21f. Ibid., 5f, 24ff. Labaree, Colonial Massachusetts 120-23. Another man died under torture, having refused to plead either guilty or not guilty.

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the ‘saints’ of the congregation. Some measure of religious liberty had also been obtained in 1691, when freedom of worship was granted to all Protestants. As was the custom at the time, Catholics were excluded. Despite such developments, however, the congregational church remained established by law in Massachusetts until well into the nineteenth century.90 Also, lifestyles began to be more secular and focused on the present rather than upon the next life. Under these circumstances, it seems hardly surprising that there was a nearuniversal lament about the relaxation of moral standards among the clergy.91 Education had long been of great interest to the Puritan population of Massachusetts, if for no other reason than the necessity for the faithful to be able to read the Bible. Accordingly, there was a number of public schools after the 1640s, when the General Court legislated that a school teacher had to be maintained by all towns of fifty households or more. Towns of twice that number were also required to employ a grammar school teacher for more advanced education. Even though many communities seem to have been lax in the implementation of such requirements and dedicated school buildings were not always available, these provisions created considerably better access to education in the Bay Colony than in any other North American province. Thanks to these provisions, literacy among both men and women was unusually high in eighteenth-century Massachusetts.92 College education was available in Massachusetts from very early on. Harvard College was founded in 1636, and while training clergy for the Bay Colony may have been the impetus in its establishment, only about half of the graduates actually became ministers.93 Instead, the curriculum of Latin, Greek, ancient history, and philosophy was widely considered an important basis for any man aspiring to positions of influence within colonial society.94 The social make-up reflected these aspirations, in that the students generally came from wealthy, socially respected backgrounds, which allowed their families the means

90

91 92

93

94

Sanford H. Cobb, The Rise of Religious Liberty in America: A History (New York: Cooper Square Publishers, 1968) 233f. Only in 1833 was state support for the established congregational church abandoned in Massachusetts. Labaree, Colonial Massachusetts 170. Ibid., 176ff; Samuel Eliot Morison, The Intellectual Life of Colonial New England, [2d ] ed. (New York: New York University Press, 1956) 59, chapters 3 and 4. Morison still has a good overview over the development of the education system in Massachusetts, even though it is dated in some respects. See also Sheldon S. Cohen, A History of Colonial Education, 1607-1776 (New York: Wiley, 1974) 54-68. Ibid., 67; John R. Thelin, A History of American Higher Education (Baltimore, MD: Johns Hopkins University Press, 2004) 37. Thelin discounts the importance of training ministers, as does Morison, The Intellectual Life of Colonial New England 32; Thelin, A History of American Higher Education 27f. Ibid., 24-28.

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27

both to survive economically without the help of a son and at the same time to afford the tuition, room, board and travel expenses.95 That literacy and an interest in reading must have been widespread is also witnessed by the existence of a large and varied literary culture. While printed works in the seventeenth century had been largely of a religious nature, secular material was making its appearance by the eighteenth. Poetry and other creative works were published in newspapers, as pamphlets or in book format. Almanacs – collections of calendars, astronomical data, tide charts, moon and solar table calculations widely used by farmers, mariners and other professions dependent upon the knowledge of such data – also enjoyed wide circulation and for a long time were second only to the Bible in distribution and readership. Nonetheless, sermons and similar religious material continued to be a mainstay in printers’ production and sales.96 Massachusetts also had the first newspaper in the modern sense of the word in North America. In 1704, John Campbell started the Boston News-Letter and a second one, the Boston Gazette, appeared in 1719. Both papers continued successfully for many years.97 The value of such publications was manifold. Not only did they provide a medium for news and information from other colonies, the Empire and the world, it also made it possible for merchants and artisans to advertise their goods and services. Political decisions, laws and proclamations were often published in the newspapers, while divisive issues were often debated there between correspondents writing to the editors. Furthermore, newspapers developed into an important medium allowing for greater political and social participation by residents of the backcountry, as they spread information on a regular basis without necessitating travel in order to participate in the exchange of information.98 Just like white colonists everywhere on the North American continent, settlers in Massachusetts relied on different forms of unfree labor. Both slavery 95

96

97

98

James Axtell, The School Upon a Hill: Education and Society in Colonial New England (New Haven, CT: Yale University Press, 1974) 206-15; Thelin, A History of American Higher Education 25f. Hugh Amory, “Printing and Bookselling in New England, 1638-1713,” in A History of the Book in America, Volume I: The Colonial Book in the Atlantic World, ed. Hugh Amory and David D. Hall (Cambridge: Cambridge University Press, 2000); Hugh Amory, “Reinventing the Colonial Book,” in A History of the Book in America, Volume I: The Colonial Book in the Atlantic World, ed. Hugh Amory and David D. Hall (Cambridge: Cambridge University Press, 2000), particularly 45; Labaree, Colonial Massachusetts 189ff, 99f; Morison, The Intellectual Life of Colonial New England chapter 5. For the almanacs see Clarence Saunders Brigham, An Account of American Almanacs and Their Value for Historical Study (Worcester, MA: American Antiquarian Society, 1925). Labaree, Colonial Massachusetts 190f. The News-Letter survived until 1776, while the Gazette was even continued until 1798. Brigham, History and Bibliography of American Newspapers I:327ff and I:297ff. Labaree, Colonial Massachusetts 191.

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and indentured servitude existed in the Bay Colony throughout the colonial period. Indentured servants usually bound themselves to labor for a specific period of time, mostly to work off the cost of their Atlantic passage. Numerically, however, indentured servitude was not significant in New England.99 Slavery also made a much smaller impact than in southern states, with only about 2400 blacks living in Massachusetts in 1754.100 Under these circumstances, the very harsh and socially segregated variety of slavery then existing in the southern colonies did not develop in Massachusetts. In fact, most slave owners only had a small number of slaves, who usually lived very closely together with the owner’s family. This rather small African population led to a much stronger acculturation to white society and consequently weaker remnants of African culture than in the South, where strong separation of the spheres of slaves and whites paradoxically led to greater room for slaves outside immediate supervision.101 Politically, Massachusetts had undergone far-reaching changes in the 1680s and 1690s. After the hated experiment of the Dominion of New England had broken down together with the Stuart monarchy, Massachusetts had managed to obtain a new charter to replace the one that had been invalidated in 1684. The new Charter of 1691 placed Massachusetts upon the foundation on which it was to remain until the Revolution. Compared to the 1629 proprietary charter, the new document brought significant changes for the Bay Colony, among other things in its geographical composition. The former Plymouth colony as well as some of the offshore islands like Nantucket and Martha’s Vineyard were annexed to Massachusetts and it regained control of the province of Maine, while New Hampshire and Connecticut were reestablished as separate entities.102 Most importantly, Massachusetts was to be a royal colony henceforward. The king’s power manifested itself very strongly throughout the new system, particularly in the authority granted the colonial executive, i.e. the governor who represented the king and royal government in Massachusetts. Under the charter, the governor held extraordinary powers, more even than the monarch did in Britain at the time. Not only could the governor appoint a great number of royal 99

100

101 102

David W. Galenson, White Servitude in Colonial America: An Economic Analysis (Cambridge/New York: Cambridge University Press, 1981) 171, 74. See also Abbot Emerson Smith, Colonists in Bondage: White Servitude and Convict Labor in America, 1607-1776 (Gloucester, MA: P. Smith, 1965) 309. William Dillon Piersen, Black Yankees: The Development of an Afro-American Subculture in Eighteenth-Century New England (Amherst, MA: University of Massachusetts Press, 1988) 164. This number seems to include free blacks, too. Though not exactly new, a history of slavery in New England is Lorenzo Johnston Greene, The Negro in Colonial New England, 1620-1776 (New York: Columbia University Press, 1942). Piersen, Black Yankees: The Development of an Afro-American Subculture in Eighteenth-Century New England 25f. Labaree, Colonial Massachusetts 119.

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29

officials in the colony, he also had an absolute veto over legislation and was empowered to call and prorogue the legislature – the General Court – at will. Furthermore, the charter reserved the king (i.e. the Privy Council) the right to review any provincial legislation and to void laws if it found them detrimental to British or royal interest.103 Despite the great powers lodged in the executive, the General Court retained considerable powers, arguably greater than in any other North American colony. Perhaps the most interesting one is the fact that the governor’s council, modeled upon the Privy Council in England, was not to be appointed by the king, but rather elected annually by the House of Representatives. As the council acted both as an advisory body for the governor and as the upper house of the legislature, this procedure guaranteed considerable influence to the elected representatives of the population at large.104 Furthermore, the General Court retained the right to initiate legislation rather than simply acting on what the governor might place before it, which, again, was an important departure from the situation in most other colonies. In other respects, too, the House of Representatives of Massachusetts modeled itself on the House of Commons in Britain, not only in demanding some of that body’s privileges such as freedom of speech in debates, election of the Speaker and freedom from arrest, but most particularly in controlling the purse-strings. As such, the Massachusetts House had great leverage over appointments and the remuneration of the appointees, of which the control of the governor’s salary may have been of the greatest consequence.105 Despite such momentous business, however, the House also transacted business of much smaller magnitude. Private bills and petitions from citizens took considerable time and the House often attended to the affairs of individual citizens, for example granting divorces, settling inheritances and granting relief in numerous ways to citizens who might have been struck by misfortune.106 The members of the House were elected in the towns annually by those citizens who were either forty-shilling-freeholders or owners of other property valued at 20₤.107 Religion was no longer a criterion for political participation.108 Small towns could send at least a single representative, while those of more than 103 104 105

106 107

108

Ibid., 119f, 25f, 35. Ibid., 119. Ibid., 132f. In fact, successive governors of Massachusetts quarreled with the House over their salary and the fact that the House refused to vote a permanent salary. It preferred to retain the annual appropriation schedule, which meant that the governor might be punished by a reduced salary for offending the Representatives. Ibid., 137f. Ibid., 133. Ibid., 127, 31f. By the standards of the time, this was an extremely liberal property qualification, allowing large parts of the male population to participate in provincial politics. Ibid., 119.

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forty voters were required to do so. Towns in which 120 or more voters lived could send two delegates, Boston could elect four. Representatives were required to live in the towns they represented and, far from being independent once chosen, they were frequently instructed by their constituents on how they should act on certain matters. Indeed, the towns may have been the most important political unit of provincial Massachusetts, just as they had been in the proprietary era. It was at that level that many decisions affecting the daily lives of the inhabitants were made and at which most public officials, including Representatives to the General Court, were elected.109 Along with the population and size of the colony, the number of towns more than doubled between the Glorious Revolution and the American Revolution. In 1695, Massachusetts had 83 towns, while in 1765 there were 186.110 Within the towns, affairs were increasingly directed and debated by the town meetings rather than giving wide latitude to the elected officials as had been common. These developments went hand in hand with wider popular involvement and representation in politics. The right to vote in local affairs was very widespread, as the property requirements were comparatively low at 20₤ of taxable property. Under these circumstances, it has been estimated that threefourths of the male population voted in town meetings and town affairs.111 At the same time, the traditional political consensus in Massachusetts began to erode. To the degree that social and economic interests in the colony diversified, so did the political interests. The will of the majority decided issues with increasing frequency, whereas previously, under the Puritan proprietary government, it had been attempted to achieve unanimity. With these things in mind, it is hardly surprising that Massachusetts saw the development of political ‘parties’ by the beginning of the Revolution.112

South Carolina The Carolinas were a much younger colony than Massachusetts, the charter dating from the 1660s and the first settlement, Port Royal, having only been

109 110 111 112

Ibid., 126, 28. Ibid., 128. Ibid., 127, 29f. Ibid., 144. The question of parties in Massachusetts is in dispute. Van Beck Hall argues that parties as organized structures did not exist, while Stephen Patterson argues that highly consistent voting patterns etc. suggest the existence of established parties. Van Beck Hall, Politics without Parties: Massachusetts, 1780-1791 ([Pittsburgh, PA]: University of Pittsburgh Press, 1972); Stephen E. Patterson, Political Parties in Revolutionary Massachusetts ([Madison, WI]: University of Wisconsin Press, 1973).

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established in 1670.113 The separation of North and South Carolina did not happen officially until the establishment of both as royal colonies in the 1720s, yet both were administered individually from early on.114 South Carolina’s population remained comparatively small by 1700, with a mere 5700 inhabitants reported. Of these few, 2400 were slaves.115 Yet, that was not the only count on which South Carolina differed from the older Bay Colony. Another major difference was the fact that South Carolina was to remain politically unsettled well into the eighteenth century. The causes of internal strife were manifold, with economic, religious and political factors playing a role. From the very beginning, the proprietors of South Carolina had intended their colony as a profitable investment. In that, they differed fundamentally from the proprietors of Massachusetts, for whom economic considerations had been of little or no consequence. Those who invested in the Carolina venture were wealthy, powerful men with experience in colonial matters, as they were either planters themselves (in Barbados) or held positions on the Council for Foreign Plantations. Thus, the way South Carolina would take towards a plantation economy was probably predestined, as the growing and marketing of staple crops on the Barbadian model seemed to offer the quickest possible return on the investment.116 The predilections and experience of the planters from Barbados also presaged the introduction of slavery into South Carolina. Even before any staple economy had been introduced and while even the colony’s food supply was still precarious, planters had expressed their preference for African slave labor. The difficulties expected in growing a labor-intensive crop in the hot, humid and malarial climate in the swamps of tidewater Carolina made it appear to the planters that African slave labor would be preferable to the work of white servants.117 Nonetheless, considerable numbers of white indentured servants were 113

114 115 116 117

Marion Eugene Sirmans, Colonial South Carolina: A Political History, 1663-1763 (Chapel Hill, NC: Published for the Institute of Early American History and Culture, Williamsburg, Virginia by the University of North Carolina Press, 1966) 5, 19; Robert M. Weir, Colonial South Carolina: A History (Millwood, NY: KTO Press, 1983) 52. Ibid., 68. United States. Bureau of the Census., Historical Statistics of the United States, Colonial Times to 1970 II:1168, Series Z 1-19. Walter B. Edgar, South Carolina: A History (Columbia, SC: University of South Carolina Press, 1998) 131f; Sirmans, Colonial South Carolina: A Political History, 1663-1763 3-6. Peter H. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion, [1st ] ed. (New York: Knopf, 1974) chapter 3. African slaves seem to have been at least partially immune to some diseases, most notably yellow fever and malaria. Weir, Colonial South Carolina: A History 40f. Countless accounts have treated one aspect or another of North American slavery. Some of the most widely received general works include: Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America (Cambridge, MA: Belknap Press of Harvard University Press, 1998); Norbert Finzsch, James Oliver Horton, and Lois E. Horton, Von Benin Nach Baltimore: Die Geschichte Der

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brought to the colony to alleviate the labor shortage while at the same time tilting the population balance in favor of the white settlers. In addition, for a long time South Carolinians relied on Indian slaves captured from the surrounding nations, assuming that they would be accustomed to the climate and hence well-suited to plantation labor.118 For the longest time, the contributions these workers made to South Carolina society and its economic success were not recognized by scholars at all. Meanwhile, though, it has been suggested that particularly the knowledge of Africans in the cultivation of rice was of some import in laying the foundation for white South Carolina’s prosperity.119 During the early phases of the colony, the working and living conditions of blacks and whites, free workers and unfree did not vary significantly. All were included more or less equally in the daily tasks. Even hunting was allowed and military service required of the unfree population. The situation changed over time when white planters began to argue that indentured servants were much more expensive to maintain than slaves, especially as the former served only for a limited time and had to be supplied with certain goods at the end of their indenture. Furthermore, slaves in the North American colonies were treated as chattels, i.e. as personal and absolute property, which could be bought and sold, thus maintaining its value.120 The growth of the African slave population and the fact that the white population could not keep up with the growth caused some changes in the at-

118

119

120

African Americans, 1. ed. (Hamburg: Hamburger Edition, 1999); Peter Kolchin, American Slavery, 1619-1877 (New York: Hill and Wang, 1993); Robert Olwell, Masters, Slaves & Subjects: The Culture of Power in the South Carolina Low Country, 1740-1790 (Ithaca, NY: Cornell University Press, 1998); Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion. Sirmans, Colonial South Carolina: A Political History, 1663-1763 24f. Robert Weir points out that Indian males were often sold to the Caribbean islands, while women and children were kept on the South Carolina plantations. Weir, Colonial South Carolina: A History 142f. See also Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion 38-40. For this argument see Daniel C. Littlefield, Rice and Slaves: Ethnicity and the Slave Trade in Colonial South Carolina (Baton Rouge, LA: Louisiana State University Press, 1981) 76, 99; Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion 34-62. Kolchin, American Slavery, 1619-1877 7, 12f. Russel Menard has examined in minute detail the transformation of the South Carolina labor force from white indentured servants to African slaves in Russel R. Menard, “The Africanization of the Lowcountry Labor Force, 1670-1730,” in Race and Family in the Colonial South, ed. Winthrop D. Jordan and Sheila L. Skemp (Jackson, MS: University Press of Mississippi, 1987; reprint, in: Russel R. Menard, Migrants, Servants and Slaves: Unfree Labor in Colonial British America. Aldershot: Ashgate, 2001). Warren B. Smith has advanced the argument that the primary reason to introduce white indentured servants was that they alleviated the prevailing labor shortage while at the same time contributing to the defense of the colony, primarily against the slave population but also against foreign enemies. Warren B. Smith, White Servitude in Colonial South Carolina (Columbia, SC: University of South Carolina Press, 1961).

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33

titudes of whites towards their slaves, as they perceived them more and more as a threat. After that time, freedoms of slaves became more limited, they were banned from using guns and the racial divide became more pronounced than it had been before.121 All the while, the economic importance and the social impact of slavery were growing so that by the early eighteenth century the colony was as dependent on slave labor for its prosperity as it was defined socially by its slave society.122 At the beginning of the eighteenth century, South Carolina was still struggling to even out its balance of trade.123 The first export goods had been foodstuffs such as corn and meat, which were supplied to the sugar islands of the Caribbean. Deerskins, often traded with the Native population and worth several thousand pounds sterling every year, provided another highly profitable export commodity before 1730.124 Additionally, the South Carolina economy, like that of Massachusetts, also benefited from the high demand for naval stores in Britain created by the continued naval wars with France and Spain and the expansion of the British merchant fleet. From 1705 on, Britain offered a bounty on timber, masts, and various tar products which were urgently needed to supply the British shipbuilding industry.125 The most significant staple crop, however, was rice. After initial failures in its cultivation, it had been successfully reintroduced in the 1690s and experienced an ecstatic growth since then. Over a million acres of rice culture existed by the 1720s and demand continued to grow. Parliament’s permission in 1730 to ship Carolina rice directly to Spain and Portugal, where it was most highly prized, laid the foundation for a further increase of that profitable crop.126 121 122

123

124

125 126

Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion chapter 4. Kolchin, American Slavery, 1619-1877 25f. For the impression this slave society made upon observers see Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion chapter 5. Sirmans, Colonial South Carolina: A Political History, 1663-1763 55ff. Sirmans states that in 1699 the balance of trade was positive for the first time, a statement contradicted in Converse D. Clowse, Economic Beginnings in Colonial South Carolina, 1670-1730, [1st ] ed. (Columbia, SC: Published for the South Carolina Tricentennial Commission by the University of South Carolina Press, 1971) 137, 82f. Clowse also points to the difficulties associated with calculating any balance of trade arising from the fact that imports and exports were often imperfectly recorded. For that issue, see also Converse D. Clowse, Measuring Charleston's Overseas Commerce, 1717-1767 : Statistics from the Port's Naval Lists (Washington, D.C.: University Press of America, 1981) 25. Kathryn E. Holland Braund, Deerskins & Duffels: The Creek Indian Trade with Anglo-America, 1685-1815 (Lincoln, NE: University of Nebraska Press, 1993) 29; Weir, Colonial South Carolina: A History 142f. Edgar, South Carolina: A History 138f; Sirmans, Colonial South Carolina: A Political History, 1663-1763 73f; Weir, Colonial South Carolina: A History 143-45. Edgar, South Carolina: A History 139-42; Sirmans, Colonial South Carolina: A Political History, 1663-1763 162; Weir, Colonial South Carolina: A History 145f, 65f. Earlier attempts to have

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Trade developed a different significance for South Carolina than it did for Massachusetts. While the northern colony achieved a formidable position in the carrying trade, particularly that of the southern colonies, South Carolina participated more as a supplier and recipient of goods. Thus, the merchant fleet of the colony remained rather small and largely limited to coastal trade.127 Nonetheless, merchants existed in the colony, largely concentrated in Charles Town, who were engaged in trading the colony’s exports and supplying the planters with necessities from Europe. Often, South Carolina merchants did not focus on trade exclusively, but had secondary interests in land, shipping, and moneylending.128 Internally, the trade with the neighboring Indian nations was one of the mainstays of the provincial economy. The hides that were so important a staple for export by South Carolinians were largely obtained from the Native nations, and the Indian trade also supplied considerable numbers of slaves for the Carolina plantations in the first decades of colonization. For the British traders, the commerce with the Natives provided a market for British manufactures, such as textiles, tools and arms.129 Thus, the backcountry trade contributed immeasurably to the economic development of South Carolina, but at the same time made its continued prosperity perhaps uniquely dependent upon good and peaceful relations with its neighbors.130 A major difference between the economic systems of Massachusetts and South Carolina lies in the fact that artisans and small tradesmen never obtained a significant status in South Carolina, while they were of great importance in the Bay Colony. This situation was mainly due to the fact that labor was always scarce and expensive in South Carolina, while land, seemingly an easy source of wealth, was plentiful and cheap. Under these circumstances, shipbuilding came to be the single most important manufacturing industry of the colony, and while the business was small compared to Massachusetts, South Carolina ships enjoyed a good reputation.131

127 128 129 130

131

immediate exportations to Spain and Portugal allowed had been unsuccessful. Sirmans, Colonial South Carolina: A Political History, 1663-1763 107f. Daniel Littlefield goes into considerable detail on the development of rice culture in South Carolina. Littlefield, Rice and Slaves. Weir, Colonial South Carolina: A History 161. Ibid., 153. Braund, Deerskins & Duffels especially chapter 2. John Philip Reid has established how different understandings of trade and diplomacy complicated the interactions between the British in South Carolina and the Cherokee nation. John Phillip Reid, A Better Kind of Hatchet: Law, Trade, and Diplomacy in the Cherokee Nation During the Early Years of European Contact (University Park, PA: Pennsylvania State University Press, 1976). Goldenberg, Shipbuilding in Colonial America 79, 121; Weir, Colonial South Carolina: A History 161.

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Just like Massachusetts, South Carolina also developed a currency problem. Acting very much in the same pattern as the northerners, South Carolinians had emitted bills of credit to finance their exertions in Queen Anne’s War.132 Further instability, such as the Yamasee War of 1715 and the overthrow of the proprietors in 1719, made necessary ever more issues of paper currency, so that instead of retiring the bills on schedule, the amount in circulation increased permanently and depreciated accordingly. By 1731, 106,500 pounds were in circulation and had depreciated to about one seventh of their original value. Nonetheless, the entire outstanding sum was reprinted and made legal tender in order to provide for a medium of exchange and at the same time put the provincial debt upon a firm foundation.133 Together with the issue of paper currency came that of debt. Not only the colony, but the citizens too, were greatly indebted. Compared with many other colonies, however, the distribution of the debt was interesting: Not small backcountry farmers, but rather the large planters were the debtors in South Carolina, for they often could not afford the capital outlay for further importation of slaves, which they deemed absolutely necessary to their economic success. Accordingly, the relations between debtors and creditors remained for a long time more harmonious than in other states, as the divide between debtors and creditors was not at the same time a social divide. Thus, social components underlying debt conflicts elsewhere were non-existent in South Carolina.134 The social system that the proprietors had originally envisioned was enshrined in the Fundamental Constitutions of Carolina, the constitutional document Anthony Ashley Cooper, one of the lords proprietors, and John Locke devised as a frame of government of the colony. It envisioned a complex feudal system of land ownership and political rights, in which the proprietors and their supporters would wield the greatest share of power, while it also made provisions for the political participation of freeholders135. Those who owned a minimum of 50 acres of land were granted the franchise, while ten times that amount was required to be eligible as a representative.136 The Fundamental Constitutions were to become effective as soon as practicable and until that time would serve as guiding principle for the administration of the colony. The

132 133

134 135 136

Ibid., 94. Brock, The Currency of the American Colonies, 1700-1764 123; John J. McCusker, Money and Exchange in Europe and America, 1600-1775: A Handbook (Chapel Hill, NC: Published for the Institute of Early American History and Culture, Williamsburg, Virginia by the University of North Carolina Press, 1977) 223. Weir, Colonial South Carolina: A History 153-55. Sirmans, Colonial South Carolina: A Political History, 1663-1763 7-14; Weir, Colonial South Carolina: A History 54-57. Sirmans, Colonial South Carolina: A Political History, 1663-1763 13.

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original document was amended several times over the years and finally abandoned in 1698, without ever having been fully implemented.137 One of the most innovative provisions of the Fundamental Constitutions was its guarantee of religious freedom, which extended much farther than any other similar provision at that time. Not even the holding of public office was limited to any specific denomination, and there was a significant Jewish community in Charles Town even before the eighteenth century.138 The proprietors intended to draw immigrants from various backgrounds to their colony, and toleration proved to be an expedient means of doing so. Anglicans from Barbados were the first settlers in the new colony, but many groups persecuted elsewhere migrated to Carolina. After the Revocation of the Edict of Nantes in 1685, for example, French Protestants immigrated in considerable numbers.139 As a further incentive, the proprietors made generous land grants to potential immigrants, a policy that continued under the royal government.140 While education had been of particular importance to the settlers of Massachusetts from religious motives and accordingly featured prominently on legislative and social agendas, it took something more of a back seat in South Carolina. The decentralized settlement patterns constituted a hindrance, as a school would, of necessity, have to draw its students from the population of a large area. This may help explain the prevalence of private tutors and the preference for boarding schools abroad, despite the fact that a rudimentary public school system existed in the low-country after 1712. Anything beyond grammar school level, however, still required travel at least to the colonies to the north, but a preference for British educational establishments already existed.141 Originally the proprietors had intended to keep landholdings reasonably small in order to encourage dense settlement patterns and to avoid a widely dispersed population. Settling in townships, the proprietors expected, would facilitate defense and administration of the province.142 The proprietors themselves, however, undermined their own system. On the one hand, they expected to establish a plantation economy focused on the production of marketable 137 138

139 140

141 142

Edgar, South Carolina: A History 42-45; Sirmans, Colonial South Carolina: A Political History, 1663-1763 72f; Weir, Colonial South Carolina: A History 58. On the Jewish community in Charleston see James William Hagy, This Happy Land: The Jews of Colonial and Antebellum Charleston (Tuscaloosa, AL: University of Alabama Press, 1993). Edgar, South Carolina: A History 49f; Sirmans, Colonial South Carolina: A Political History, 1663-1763 22, 36f; Weir, Colonial South Carolina: A History 205. Sirmans, Colonial South Carolina: A Political History, 1663-1763 15; Weir, Colonial South Carolina: A History 148f. Robert Ackerman even sees the availability of cheap land as the primary motive for migration to Carolina. Robert K. Ackerman, South Carolina Colonial Land Policies, 1st ed. (Columbia, SC: Published for the South Carolina Tricentennial Commission by the University of South Carolina Press, 1977) 3f. Weir, Colonial South Carolina: A History 248. Ackerman, South Carolina Colonial Land Policies 20f, 27f.

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staple crops. On the other hand, they made very large headright grants to settlers who brought numerous family members and servants with them. Thus, even though the size of the headright grants decreased over time, the germ for the preeminence of large tracts was laid very early on.143 Only in later years, when royal administration attempted to shore up the defensive posture of the colony was the settlement in townships revived in the backcountry. Several settlement schemes were attempted in order to attract immigrants to settle the backcountry. Some established towns together with their compatriots, while others acquired small farms.144 However, because of the early proprietary focus on plantation farming for cash crops and the great capital outlay this required, subsistence farming was all but inexistent.145 By 1700, South Carolina was sufficiently well established and even prosperous economically, yet the political situation remained very unstable for most of the first thirty years of the eighteenth century. One of the earliest points of contention was the question of religious establishment. Originally founded as a haven of religious freedom with no established church, religious strife, heightened by nationalism and economic interest, had come to be a regular feature of provincial politics. In a surprise coup, the Anglicans in the Commons House managed to pass a bill excluding dissenters and establishing the Anglican Church in 1704.146 Though the act was challenged and later repealed, the new law nonetheless established the Church of England. A second law, following the repeal of the 1704 act, cemented Anglicanism as the established church, though now giving dissenters some latitude for political participation.147 Another hot spot was foreign relations. From the beginning of the settlement, the colony had been under a permanent threat from both Native Americans and the Spanish. Warfare had often erupted between the Spanish in Florida and the Carolinians, and in the early 1700s, Queen Anne’s War caused a heightened threat. Early in the war, Governor Moore undertook an attack against St. Augustine, succeeding in destroying the town but being unable to take or destroy the fort. A Spanish counterattack was successfully repulsed out-

143 144 145

146 147

Ibid., 24f, 31f. Ibid., 64; Edgar, South Carolina: A History 52-56; Sirmans, Colonial South Carolina: A Political History, 1663-1763 36f. Ibid., 21. Subsistence farming did play a role in the backcountry, but there were hardly any European settlements before the 1730s. Rachel N. Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760-1808 (Chapel Hill, NC/Williamsburg, VA: Published for the Institute of Early American History and Culture, Williamsburg, Virginia by the University of North Carolina Press, 1990) 10-15. Edgar, South Carolina: A History 94f; Sirmans, Colonial South Carolina: A Political History, 1663-1763 87; Weir, Colonial South Carolina: A History 76-79. Edgar, South Carolina: A History 93-97; Sirmans, Colonial South Carolina: A Political History, 1663-1763 89f; Weir, Colonial South Carolina: A History 80.

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side Charles Town, which effectively ended Spanish land operations in that quarter.148 Despite the defeat of the Spanish, trouble was brewing for South Carolina. The Indian trade had long been a successful venture for some influential Carolinians, but in spite of attempts at regulating the trade and creating reasonably fair rules, the traders continued to commit depredations on their trading partners: Natives were frequently defrauded and coerced in the trade, and had often been captured and sold into slavery. These violations were so widespread that the regulation of the Indian trade was a permanent hot issue in colonial politics.149 War finally came with the Tuscarora in 1711. North Carolina, on whose territory the war was largely fought, proved unable to handle the war by itself, and the interests of South Carolina were sufficiently threatened to get involved. The most destructive war with the native population, though, was the Yamasee War, which began in April 1715. For almost a year, the colony was on the brink of collapse, as most of the nations in and around South Carolina went to war. A treaty with the Cherokee finally gave South Carolina the upper hand and a semblance of stability, but the raids on outlying settlements continued into 1717.150 The greatest political upheaval the colony was to experience, however, was the overthrow of the proprietary government and the switch to royal authority. Having given up the hope for a financial return from their colonies, most of the proprietors had lost interest in their colony by the 1710s.151 Under these circumstances, they were unwilling to support the colony with their private funds, despite the desperate petitions they received during the Yamasee War.152 That reluctance, in combination with some other decisions that were seen as heavyhanded – such as demanding the retirement of all paper currency against colo148 149

150

151 152

Sirmans, Colonial South Carolina: A Political History, 1663-1763 85, 87; Weir, Colonial South Carolina: A History 80-82. Sirmans, Colonial South Carolina: A Political History, 1663-1763 111, 40-43. On the origins of the Yamasee War in the abuses of the Indian trade see Braund, Deerskins & Duffels 34ff. Edgar, South Carolina: A History 98-101; Sirmans, Colonial South Carolina: A Political History, 1663-1763 112-14. It has often been remarked that the Cherokee seemingly did not honor their “treaty” to turn out in force against the Yamasee. John Philip Reid has pointed out that this view is problematic, in that Cherokee society did not have an established treaty-making power. From a Cherokee perspective, one Cherokee had pledged his support to South Carolina, and his support to persuade his neighbors. Reid, A Better Kind of Hatchet: Law, Trade, and Diplomacy in the Cherokee Nation During the Early Years of European Contact 58ff. Only the threat to the entire nation from the Creeks, whose negotiators had been killed by Cherokee, could unite the entire nation in war, a war that placed them alongside South Carolina. Ibid., chapter 7. Sirmans, Colonial South Carolina: A Political History, 1663-1763 105f. Ibid., 118f.

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nial wishes, disallowing a number of popular provincial laws, unwillingness to help against pirates and finally unilaterally changing the council – and a new Spanish war scare caused the council to call for royal administration, effectively ending the rule of the proprietors in South Carolina.153 After the overthrow of the proprietary government, the fortunes of South Carolina remained in limbo for more than ten years. A royal interim governor arrived in 1721, but by then the colony had already seen the contest for power between the proprietary governor and the provisional one elected by the assembly when it called for royal support.154 In the following years, many of the issues that had plagued Carolina politics for years or even decades came to a head again. While Governor Francis Nicholson managed to keep the Commons House and the Council on his side by making considerable concessions of privilege, and even though the ever-troublesome Indian trade could be put on a solid foundation, significant troubles still arose.155 One such trouble was the continuing debate over the extension of the paper currency, which caused hard feelings in the legislature and the population at large, particularly between the merchant elites who favored a hard currency and the agricultural interest, which generally supported an extended paper currency.156 Another bone of contention was the question of economic and political participation within the colony. The smaller farmers in the backcountry and the Charles Town merchants clashed over the functions of the courts in which debtors’ cases would be tried. While the Charles Town faction wanted such cases tried in the city, the indebted farmers argued that the cases belonged in the local courts, which they knew would be more sympathetic to their plight. The controversy was heightened by the collapse of the British naval stores market in 1727, which disproportionately hurt small backcountry farmers. Order broke down, courts were closed violently and the militia was called out. On top of these problems, the tenuous peace with the Native population broke down again and the Commons House found itself at loggerheads with the Governor and Council over questions of privilege and paper money.157 Also, the fact that the future status of the province had not been finally decided did not help political tranquility. Briefly, in 1726, the proprietors seemed on the verge of being reinstated in their position, before the Crown finally bought them out in 1729 and commissioned Robert Johnson as the first permanent royal governor in 1730.158 153 154 155 156 157 158

Edgar, South Carolina: A History 102-06; Sirmans, Colonial South Carolina: A Political History, 1663-1763 116-27; Weir, Colonial South Carolina: A History 99-102. Sirmans, Colonial South Carolina: A Political History, 1663-1763 130f. Ibid., 137-41. Ibid., 146-53. Ibid., 154-59. Ibid., 153, 60-62.

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2.2. Mid-Century and Revolution Massachusetts The population of Massachusetts continued to grow in the middle of the eighteenth century. The census of 1765 enumerated roughly 240,000 citizens for all of Massachusetts, while Boston’s population stagnated at about 15,500 residents, a decline even from 1743, when roughly 16,400 had been counted. In addition to Boston, nine other towns had a population of over 3,000 inhabitants.159 For most of the century, life in Massachusetts was influenced by the various wars which the colony fought, both by itself and on behalf of the empire’s European interests. Mostly, the French presence and their cooperation with the Native population were at the root of such troubles. During King George’s War – the American extension of the War of the Austrian Succession – which engulfed the northern frontier between 1744 and 1748, Massachusetts was again considerably hurt in its development. The successful capture of the French post of Louisbourg on Cape Breton Island, which British diplomats seemingly gambled away at the conference table later, could, however, hardly offset the feeling that a threat continued to exist.160 After only a few years of peace, Massachusetts again found herself at war with France and her allies in what came to be known as the French and Indian War. Intermittent warfare after 1754 in the Virginia backcountry merged with the European alliance warfare of the Seven Years War. After considerable setbacks, primarily in northern New York at the beginning of the conflict – France not only captured Fort Oswego guarding Lake Superior, but also Fort William Henry on Lake George, guarding the approaches to Lake Champlain, and furthermore managed to establish another fort on the portage between Lakes Champlain and George – the British managed to capture Louisbourg on the Atlantic and Frontenac on Lake Ontario with considerable support primarily from the New England colonies. When British troops managed to take Quebec in the summer of 1759 and subsequently forced the surrender of Montreal in 1760, French influence had been completely reduced. At the end of the war in 1763, colonists had contributed heavily to the British war effort, to the point where about one third of the male population had served in the provincial regiments and Massachusetts had spent hundreds of thousands of pounds in the

159 160

Greene and Harrington, American Population before the Federal Census of 1790 21-29; Labaree, Colonial Massachusetts 161. This calculation excluded the province of Maine. Ibid., 202-07.

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pursuit of the war.161 The great confidence in the British Empire and the pride to be a part of it did not last very long in Massachusetts, however. The cession of Canada to Britain in the peace treaty of Paris had removed the major challenge to British dominion over North America, but at the same time it had removed much of the cement that had, despite all of the quarrels and disagreements, kept the empire there together. By mid-century, life in the Bay Colony had been shaped by other developments as well. The combined war effort of the colonies had brought them closer together than they had ever been before, not only in political matters. While the abortive 1754 Albany Plan of Union made great strides in that direction, the most important growth of ties occurred socially and economically. Intercolonial trade contributed an ever-growing share to the business of Massachusetts merchants, to the tune of 40% of shipping being engaged in such pursuits. Among that trade, the slave trade continued to flourish. While imports into Massachusetts itself remained negligible, the merchants, particularly of Boston and Salem, became major players around mid-century, while opposition to the trade was heard only very rarely.162 In the second half of the century, transportation infrastructure and communications between the colonies improved. Land routes became more practicable, and correspondence became easier because post roads at least between the major cities were now regularly serviced. Mail and news could now be exchanged more easily and more regularly.163 Toward mid-century, the increasingly secular outlook on life asserted itself more and more in once-theocratic Massachusetts. While many people continued to attribute the military successes in the colonial wars to divine providence, religious matters were undergoing profound changes. Not only had continued immigration brought numbers of non-Congregationalists to the Bay colony, but Anglicans even started attempts at having the congregational church disestablished.164 Art – painting, music, engraving, among others – which had been vilified for its worldly vanity in previous decades began to assert itself more and more strongly.165 Architecture became more refined, as colonists not only began to build bigger houses, now often of brick, with several rooms and stories, but also 161

162 163 164 165

Fred Anderson, A People's Army: Massachusetts Soldiers and Society in the Seven Years' War (Chapel Hill, NC: Published for the Institute of Early American History and Culture, Williamsburg, Virginia by the University of North Carolina Press, 1984) 60; Labaree, Colonial Massachusetts 209-12. During King George’s War, 1/8 of the men of militia age had served under arms. Curtin, The Atlantic Slave Trade 143; Rawley and Behrendt, The Transatlantic Slave Trade: A History 264. Labaree, Colonial Massachusetts 213. Ibid., 200f. Ibid., 181-83.

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emulated the styles of metropolitan Britain: Representative structures were built for government purposes, but wealthy provincials also began to display their wealth more ostentatiously.166 The impact of a more secular outlook on life can also be discerned in the development of material culture. The formerly sparse equipments of households became more varied and extended beyond mere necessity and utility: Silverware and china became more widespread possessions, as did elaborate furniture.167 General economic prosperity brought with it time for diversions not immediately centered upon earning a livelihood, so that literature and reading became commonplace among the population of Massachusetts. Books – of which previously only the Bible and perhaps an almanac had graced the shelves of most households – began to be a more common commodity.168 In 1760, a number of prominent residents of Salem founded a library in that city.169 Indeed, books became so widespread that even schoolbooks were now widely used and tens of thousands of copies were printed of some.170 At the same time, education expanded considerably. The curriculum of Harvard College, for example, began to include science and politics in addition to the classics, and faculty began to specialize in order to cover all subjects more expertly.171 After 1760, with victory over France in sight, new storms began to brew over Massachusetts. In a concerted effort to place its revenue on a more solid footing after the financial exertions of the war, the imperial government in London undertook to improve the enforcement of the various navigation laws. One of the colonists’ most important ways of avoiding these regulations had been through smuggling. In order to give the colonial customs officials more leverage, writs of assistance had long been used, allowing them to enter the private premises of persons suspected of illicit trading. When the writs had to be renewed after the death of George II and the accession of George III, some

166 167

168 169

170 171

Ibid., 184f. See also Richard L. Bushman, The Refinement of America: Persons, Houses, Cities, 1st ed. (New York: Knopf, 1992). Labaree, Colonial Massachusetts 185-87; Main, “The Distribution of Consumer Goods in Colonial New England”; Jackson Turner Main, The Social Structure of Revolutionary America (Princeton, NJ: Princeton University Press, 1965) 134f; Jackson Turner Main and Gloria Lund Main, “Economic Growth and the Standard of Living in Southern New England, 1640-1774,” Journal of Economic History 48, no. 1 (1988): particularly 128f and Table VII. Labaree, Colonial Massachusetts 188-93. Ibid., 160. Various ‘public’ libraries had already been established in Philadelphia and a number of other towns, while college and theological libraries had existed since the seventeenth century. Boston had to wait until 1764 for its first circulating library. Margaret Barton Korty, “Franklin's World of Books,” Journal of Library History 2, no. 4 (1967); Morison, The Intellectual Life of Colonial New England chapter 6. Labaree, Colonial Massachusetts 214. Ibid., 178ff.

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Boston merchants challenged the legality of the practice.172 While the court decided in favor of the writs of assistance, the case marked a turning-point in imperial relations in that it brought, for the first time, the question of political, legal and constitutional rights of the colonies to the foreground, whereas before most points of contention had been of an economic nature.173 The difficulties were soon to be compounded by further British attempts to strengthen its finances, and by demanding a contribution from the colonies. The Sugar Act of 1764 and the Stamp Act of 1765 were the first steps in that direction. Both measures encountered staunch opposition in Massachusetts and the other colonies, not only because they effectively levied a tax and strengthened the power of customs officials, but also because of the extensive bureaucratic procedures required for many transactions and, again, because the question of colonial rights was unclear: Parliament, in which the colonists were not represented, had passed the controversial measures whose enforcement was largely placed in the hands of the courts of Vice-Admiralty, in which trials were conducted by a single judge and without a jury. These provisions seemed to disregard blatantly what colonials considered their rights as English citizens.174 The citizens of Massachusetts espoused different ways of opposing the measures. In keeping with tradition and political decorum, they petitioned the authorities in London, both singly and in cooperation with other colonies – that was the purpose of the Stamp Act Congress which met in New York in 1765 – arguing that the trade laws were unconstitutional. They also obstructed enforcement, either by ignoring and evading the acts or by threatening the officials charged with their enforcement. Thus, mobs in Boston attacked Andrew Oliver, the designated stamp distributor, as well as Lieutenant Governor Thomas Hutchinson, ransacking both of their houses and causing thousands of pounds worth of damage. Another tool of opposition was the boycott of British goods by the colonists, which was, however, cut short by the repeal of the acts.175 The combination of the repeal of the various revenue acts with the Declaratory Act, stating that Parliament considered its acts quite constitutional and within its power, boded ill for the residents of the Bay Colony, yet it was largely ignored there.176 In 1767, a new slew of measures was proposed by the Chancellor in order to obtain financial contributions from the colonies. They met largely with the same opposition as the earlier laws, and boycott proved largely effective in the latter instance: In 1770 the Townshend duties were re172

173 174 175 176

Ibid., 220; Maurice Henry Smith, The Writs of Assistance Case (Berkeley, CA: University of California Press, 1978) points out that personal quibbles among Massachusetts politicians also played a role in the issue. Labaree, Colonial Massachusetts 221. Ibid., 223-27, 32. Ibid., 227-30. Ibid., 230.

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pealed, with only the tea duties kept in place to underline the constitutionality of the various tax measures.177 Apart from obtaining repeal of the revenue laws, colonial opposition had another, undesired effect. The numerous instances of violence against colonial officials – be it Andrew Oliver, Thomas Hutchinson or the customs commissioners in the case of John Hancock’s ship Liberty – or even against royal authority itself as in the case of the sloop Gaspée, and what seemed to be a blatant disregard for Parliamentary law, led to a feeling in colonial officials and British politicians alike that riot and disorder prevailed in Massachusetts. To counter that and to shore up imperial authority, troops were brought into Boston. While British authorities saw this as a legitimate move to uphold the law, the colonists – raised to dislike professional military institutions and to be suspicious of their involvement in civil affairs – saw this as yet more proof of the heavy-handedness of the ministry in dealing with the colonists’ grievances.178 Thus, it was the arrival of troops in Boston that triggered a further deterioration of the relations between the colonies – Massachusetts in particular – and Britain. Over the next two years, the presence of British forces in Boston was a permanent bone of contention. Not only did the residents doubt the legality (not to speak of the advisability) of having civil laws enforced by the military, as that had never been attempted before in the colonies, they also experienced daily that large numbers of soldiers dispersed over the city did not contribute much to the keeping of the peace:179 Discipline was difficult to enforce among the soldiers under the circumstances of their quartering, and incidents that tended to inflame the citizens’ passions occurred almost daily. In a concerted effort to win the publicity battle in the press, Bostonians opposed to the military specifically and British measures more generally recorded minutely every incident that happened between soldiers and residents, and saw to their being reprinted all over the colonies.180 The situation deteriorated further after British soldiers, immediately threatened by a large mob in the streets of Boston, shot and killed a number of citizens in what – in the colonial propaganda campaign – became known as the 177 178

179 180

Ibid., 237ff. Ibid., 231, 33f, 42-45, 50. For the American dislike of professional military see especially John Phillip Reid, In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution (Chapel Hill, NC: University of North Carolina Press, 1981); John W. Shy, Toward Lexington: The Role of the British Army in the Coming of the American Revolution (Princeton, NJ: Princeton University Press, 1965). Labaree, Colonial Massachusetts 242. Ibid., 246. One such publication was the “Journal of the Times” that appeared in a number of Boston, New York and Philadelphia newspapers. See Oliver M. Dickerson, Boston under Military Rule : As Revealed in a Journal of the Times (New York: Da Capo, 1970).

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Boston Massacre of March 5, 1770. While the crowd was hardly innocent in the affair and the soldiers were later acquitted of any intentional wrongdoing, the ‘massacre’ proved a boon to American propaganda, making it easy to denounce the tyranny of the British government. Following the incident, British officials removed the troops to the Castle, effectively giving up any attempt to enforce the customs laws by military force. Thereafter, Boston experienced comparative calm for some years.181 Despite the appearance of calm, however, the decisive and divisive matter at the bottom of if all had not been settled: How far did British authority, the authority of King and Parliament over the colonies, extend? Some Bostonians, among them Samuel Adams, continued to point out at every occasion that presented itself the supposed dangers of allowing Britain too much power. The question of how British officials in the colonies were to be paid was the next issue over which Adams and the administration of Governor Thomas Hutchinson collided.182 The clash happened in spring of 1773, when Hutchinson lectured the General Court on his interpretation of the British Constitution, which suggested that complete submission to and acquiescence in the decisions of Parliament was the only way open to Massachusetts and the colonies. When, in addition to Hutchinson’s constitutional exegesis, proof began to surface that he had been engaged in secret correspondence with the ministry in London, urging a stronger position against colonial affronts, his position reached the point of being untenable.183 To this explosive atmosphere, the governor added the spark of seeming unwillingness to hear any of the colonists’ complaints about the importation of dutied tea, and the situation exploded in what became known as the Boston Tea Party.184 Finally, a situation had developed in which both sides were unable to retreat from their respective positions. The authorities in London could hardly accept open and violent resistance to their claims of authority and to what they considered law and good order. The population of Massachusetts had made it clear that it would not stomach any further encroachment on what they considered their constitutional rights as Englishmen. Parliament retaliated with the so-called Coercive Acts – in Massachusetts generally known as Intolerable Acts – closing the port of Boston until the East India Company would be indemnified for their loss of tea, abridging the Charter and Government of the colony, and bringing in more soldiers to control the colony.185 To these steps, Massachusetts reacted 181 182 183 184 185

Labaree, Colonial Massachusetts 247-50. See Hiller B. Zobel, The Boston Massacre, [1st ] ed. (New York: W. W. Norton, 1970) for a detailed description of the Boston Massacre. Labaree, Colonial Massachusetts 250-52. Ibid., 252-55. Ibid., 255-62. The standard account of the Boston Tea Party is Benjamin Woods Labaree, The Boston Tea Party (New York: Oxford University Press, 1964). Labaree, Colonial Massachusetts 262f.

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with another boycott of British goods. The Coercive Acts had another effect, however, which may not have been fully expected in London: The harsh treatment, in which Britain seemed to threaten the very livelihood of Boston and its inhabitants, was widely seen in America as a dangerous precedent, causing colonies who had heretofore been distant and often indifferent bystanders to fear for their own rights, and accordingly to support Boston and communal action.186 Communal action happened in the form of the Continental Congress, an assembly of delegates from all colonies which met in Philadelphia and discussed ways of opposing the Coercive Acts. The congress passed a number of resolutions condemning British heavy-handedness, managed to forge an agreement of non-importation of British goods and dispatched petitions to Britain urging reconsideration.187 All in all, the congress brought a significant show of support for Massachusetts and made it clear that more than one colony saw their interests and well-being at stake. Not all residents of Massachusetts, however, supported the increasingly belligerent stance that some were taking vis-à-vis Parliament. Governor Thomas Hutchinson was not alone in pointing out that divided sovereignty could not exist and that Parliament was naturally the supreme legislative body of the empire. Others pointed out that it did not make economic sense to oppose Britain, as Massachusetts had, in their opinion, generally fared well within the system of the Navigation Acts. Overall, however, the voices of moderation and accommodation were few and far between. Here lay their most pressing disability, in that usually they could not make a forceful statement without exposing themselves, their families and their estates to the violent retaliation – including but not limited to being hanged in effigy, pelted with dirt and stones, and even tarred and feathered – of the more radical faction.188 Thus, open and public avowals of loyalty to Britain became less pronounced, while the number of those who harbored loyal sentiment secretly most likely remained high.189 The situation in Massachusetts was becoming ever more dangerous. More than once, the militia had assembled in order to oppose Governor Thomas Gage’s undertakings to control and disarm the population in and around

186 187 188 189

Ibid., 266f. Ibid., 271-73. Ibid., 274-78. Ibid., 300. Massachusetts proved reasonably hospitable to secret loyalists, at least no civil wars ensued as happened, for example, in New York and South Carolina. See Robert M. Calhoon, The Loyalists in Revolutionary America, 1760-1781, [1st ] ed. (New York: Harcourt Brace Jovanovich, 1973) especially section IV and Paul Hubert Smith, Loyalists and Redcoats: A Study in British Revolutionary Policy (Chapel Hill, NC: Published for the Institute of Early American History and Culture, Williamsburg, Virginia, by the University of North Carolina Press, 1964) for good introductions.

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Boston.190 Officials appointed by Gage were threatened and obstructed in the execution of their duties and courts were closed. A confrontation over some issue or other was becoming ever more likely. The British authorities were increasingly worried about the likelihood of open rebellion in Massachusetts. To reduce that danger, they not only banned the importation of arms into the Bay Colony but made repeated attempts at seizing such arms and ammunition as the population already had in their possession.191 As the government in London became impatient and demanded that something be done to reestablish royal authority, one of these expeditions finally sparked the explosion.192 An attempt to confiscate military stores in Concord caused a military clash between British troops and the provincial militia, culminating in a day-long skirmish that caused several hundreds of casualties.193 Another confrontation was not long in the waiting, as the provisional government wanted to limit British influence as much as possible. Thus, when Governor Gage attempted to establish a foothold on the hills overlooking Boston, provincial troops opposed him there. The result, known as the battle of Bunker Hill, confirmed that Massachusetts was now at war with Britain. Boston remained under British control, but under siege by militia from all over New England. When the Continental Congress took command of the operations there in July of 1775, it was clear that Massachusetts and the other British colonies were at war with the mother country.194 Warfare on Massachusetts’ soil, however, did not continue much longer. During the winter of 1775-76, troops under the command of Henry Knox had managed to haul the guns of Forts Ticonderoga and Crown Point to the east coast. In a surprise coup, they were installed over night on the hills overlooking Boston, making the British position in town ever more precarious. When an attack to take the position and the guns failed, the British commander decided to leave Boston and pursue the war elsewhere. On March 17, 1776, British troops evacuated Boston and Massachusetts, not to return for the duration of the war.195 With one immediately pressing problem solved, another matter moved to the forefront in Massachusetts, namely the question of political authority. As the charter of 1691 was obviously no longer in operation – the royal governor was being violently defied by the people and the colony was administered by an assembly and council of an uncertain, even extralegal, standing – the towns be-

190 191 192 193 194 195

Labaree, Colonial Massachusetts 270f. Ibid., 280f. Ibid., 283. Ibid., 283-85. Ibid., 287f. Ibid., 297.

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gan to clamor for a new basis of orderly government.196 Larger considerations had to be taken into account, as any precipitate action might have offended the other colonies in congress, some of whom were still hoping and working for reconciliation with Britain. As the making of a new constitution was such a momentous step, the provisional government requested advice from congress, in order to avoid causing displeasure among the delegates.197 Only after the Declaration of Independence, in September of 1776, did the provisional government suggest to the towns that a new constitution be enacted. Over some months, the two houses of the provisional legislature, sitting together, proposed a new frame of government. When the finished document was submitted to the towns for approval in 1778, however, it fell right through. The main reason for its failure seems to have been the fact that many people would have preferred a specifically elected convention rather than the legislature to prepare the document.198 Massachusetts obtained a new constitution at the second attempt. In 1779, the General Court took the matter up again and called for the election of delegates for a constitutional convention. The election was held without the usual property qualifications, creating the then broadest thinkable basis of authority: All free white adult males.199 The document the convention submitted to the towns in March of 1780 embodied the beliefs most people in Massachusetts held about government: The powers of the different branches of government were to be separate, annual elections, bans on holding multiple offices, and, for some officials, term limits were meant to keep the government answerable to the electorate. A preamble explaining the spirit of the document and a declaration of the inviolable rights of the citizens prefaced the constitution. After some further months, in which the towns were to vote on the proposal and explain any objections, the convention met again, decided that there were no major objections to their draft and declared it ratified.200

South Carolina After the establishment of royal administration in South Carolina, the colony experienced a prolonged period of political stability, during which most issues that had polarized the population for most of the colony’s existence abated. The enactment of plans to compensate for the depreciation of the colonial currency 196 197 198 199 200

Ibid., 294ff, 302. Ibid., 291-94. Ibid., 304f. Ibid., 308. Ibid., 309-12. A detailed account of the making of the constitution of 1780 can be found in Ronald M. Peters, The Massachusetts Constitution of 1780: A Social Compact (Amherst, MA: University of Massachusetts Press, 1978).

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removed the objection of most merchants.201 A land boom, together with earlier land titles that remained unclear proved a contentious issue, but the legislature settled it to more or less general satisfaction.202 The main reason, however, for the domestic truce was that the threats with which the colony had to cope multiplied during this second third of the century, so that any kind of internal strife became dangerous to its security. Not only were the trade with the Native population and the growing slave population sources of trouble, but the external threats continued to be a factor.203 The fact that relative unity and unanimity existed among the white population did not mean, however, that disharmony in the political affairs of South Carolina did not exist. The years after the establishment of royal administration in 1730 saw growing constitutional quarrels between the various branches of provincial government. These were caused primarily by the attempts and eventual success of the Commons House of Assembly to establish its predominance over the Council and the Governor. This growth of power of the lower house had various causes: Since the proprietary period, the Commons House had assumed many of the powers of the British House of Commons, such as judging its members’ qualifications and electing its own speaker. Additionally, it had obtained the Elections Act of 1694 which required elections at least every three years.204 The power of the purse was also squarely in the hands of the lower house, even though theoretically the council and the governor had their say in such matters.205 Perhaps just as important for the development of the Commons’ power was the lack thereof in the other branches of provincial government. The governor was very tightly constrained in the powers usually vested in British executives of the time, in that he had very little patronage. Most appointments were either controlled by the crown or by the Commons House, leaving little for the governor to ingratiate followers and supporters.206 Nonetheless, the power of the provincial executive remained considerable, and in many respects even greater than that of the king in Britain. However, the Commons continued their attempts to whittle away the governor’s power to the point where observers found the ‘balanced’ constitution to have lost much of its supposed balance in South Carolina.207 201 202 203 204 205

206 207

Weir, Colonial South Carolina: A History 112. See above at footnote 87. Sirmans, Colonial South Carolina: A Political History, 1663-1763 170-82; Weir, Colonial South Carolina: A History 112-15. Ibid., 124. Ibid. Edgar, South Carolina: A History 118; Weir, Colonial South Carolina: A History 125. Sirmans describes the ascent of the Commons House extensively in Part III of Sirmans, Colonial South Carolina: A Political History, 1663-1763. Ibid., chapter XII; Weir, Colonial South Carolina: A History 128-29. Edgar, South Carolina: A History 116-20; Weir, Colonial South Carolina: A History 103f, 28.

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The Governor’s misfortune was also rooted in the insignificance of the Council, which could have been a powerful ally on his side of the struggle. Its members, however, were also commoners, all but indistinguishable socially and economically from the members of the Commons House.208 In attempting to establish itself as the upper house of the legislature, the Council distanced itself from both Governor and Commons, but usually more from the former.209 Despite the feeling of domestic political calm that pervaded the colony, both its foreign and domestic affairs were everything but quiet and settled. One of the things that were greatly amiss was the institution of slavery. Many Carolinians felt deeply uneasy about it, though not from philosophical qualms but from the feeling of being surrounded by an unfree and restless majority. Slave importations had continued strong, particularly during the late 1720s and the 1730s. Thousands of slaves were brought to the colony in those years, raising the number of slaves in the colony from 20,000 in 1730 to 30,000 only ten years later. The white population during the same interval grew by only 5,000, to about 15,000 in 1740, leaving whites outnumbered two to one.210 During the 1730s, the apprehensions of the white population had been growing constantly, yet nobody in the colony seemed to question slavery or even contemplate measures to obtain more favorable odds by stopping the importation of further slaves. Instead, ever harsher punishments and reprisals were ordered to keep slaves under control. By 1739, an almost general feeling of desperation had spread in South Carolina, as the number of fugitives multiplied. Rumors of slave revolts and evidence of Spanish incitements to run away certainly contributed to a feeling of being under siege.211 The provincial government undertook a number of measures to discourage flight and rebellion. It offered, for example, bounties for runaway slaves captured in Georgia and returned to South Carolina – for their scalps if they were not returned alive – and it also negotiated with the Spanish authorities on returning fugitives, but to no avail. In August of 1739, it also passed the Security Act, which, among other things, prescribed that firearms be taken into church on Sundays, so as not to be surprised by any potential slave uprisings.212 Just before the Security Act went into effect, however, South Carolina was upset by the most threatening and most violent slave uprising of the colonial period in any of the mainland colonies. In what came to be known as the Stono Rebellion, some dozens of slaves obtained arms, killed a handful of whites and 208 209 210 211 212

Ibid., 126. Sirmans, Colonial South Carolina: A Political History, 1663-1763 chapter XIII; Weir, Colonial South Carolina: A History 127. United States. Bureau of the Census. Historical Statistics of the United States, Colonial Times to 1970 II:1173f, Series Z 155-164, II:68, Series Z 1-19. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion 308-12. Ibid., 310, 12, 13.

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began to make their way towards the southern border of South Carolina, from where they may have hoped to make it to Spanish Florida and freedom.213 Despite initial success, the party was confronted by militia on the evening of the same day and a considerable number of the insurgents were killed on the spot. Nonetheless, the rebellion was not fully suppressed until weeks later, with one leader remaining at large for several years.214 The repercussions of the rebellion were tremendous. The white population lived in permanent fear of their slaves, a fear heightened by a number of smaller acts of resistance over the following years. The institution of slavery was also affected: Slave imports were suspended for a number of years in order to obtain a more favorable ratio of whites to slaves, and the Negro Act of 1740, at least in theory, provided for the punishment of owners who mistreated their slaves. At the same time, it regulated more details of slave life and established rewards for informers, in order to keep the slave population in tighter check than before.215 In addition to internal disorders, foreign relations remained unsettled. Between 1730 and 1763, South Carolina was at war for more than 15 years. In 1739, Britain went to war with Spain over trade and smuggling in the Caribbean in what became known as the War of Jenkins’ Ear. This conflict later became merged in the larger War of the Austrian Succession, or as it was called in North America, King George’s War. During these conflicts, South Carolina mainly engaged in supporting the new colony of Georgia, which bore the brunt of the fighting with Spain. The colony participated in an abortive expedition against St. Augustine in Florida in 1740 and in 1742 Spanish forces carried a counterattack northwards with the express goal of destroying the South Carolina plantations. Fortunately for the colony, the Spanish blundered and were defeated on the Georgia coast. Nonetheless, the conflict had important ramifications for South Carolina. Not only was the war a very costly undertaking for the colony, it also 213

214

215

Robert Olwell has pointed out that flight to Florida may not have been a primary objective, but rather to wreak as much havoc as possible in South Carolina society. Olwell, Masters, Slaves & Subjects 22. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion 314-20. In recent years, some aspects of the uprising have received particular attention from scholars. John Thornton has pointed out that African culture had a significant impact upon the rebellion, while Mark Smith has argued that the beginning on the specific Saturday, September 8 may have had to do with the particular veneration of the Virgin Mary in Congolese culture. Mark M. Smith, “Remembering Mary, Shaping Revolt: Reconsidering the Stono Rebellion,” Journal of Southern History 67, no. 3 (2001); John K. Thornton, “African Dimensions of the Stono Rebellion,” American Historical Review 96, no. 3 (1991). Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion 323-26. This permanent threat of slave insurrections according to Richard Waterhouse greatly contributed to the political stability South Carolina experienced under royal government. Richard Waterhouse, A New World Gentry: The Making of a Merchant and Planter Class in South Carolina, 1670-1770 (New York: Garland, 1989) 189.

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disturbed the tenuous peace with the Native neighbors, and contributed more generally to a feeling of being under siege. The fact that large sections of Charles Town burned down and that South Carolina had just experienced the dangers of slave uprisings did nothing to alleviate the fears of the white population.216 War returned to the colonies after but a few years of peace. South Carolina was less immediately threatened by European colonial rivals, as Spain, the closest neighbor, only entered the war in 1761. Instead, South Carolinians projected an attack on French posts in what is now Alabama, which did not find approval among British politicians.217 Nonetheless, South Carolina was involved in significant and extensive warfare by itself, not with the French but with the neighboring Cherokee. Having grown wary of the repeated intrusions on their lands and the depredations wrought by whites, the Cherokee retaliated by attacking western settlements in the Carolinas in 1759. Governor Lyttleton’s rather awkward handling of the affair led to extended fighting over the next two years. In the end, the Cherokee, though not completely broken, were forced to make peace and cede parts of their land before moving onto a reservation.218 It was also during the Cherokee War that South Carolina had its own experience with the British military which the colonials would remember very unpleasantly. Originally, tensions had developed over quartering and supplying royal troops, but the perceived haughtiness of British officers vis-à-vis their colonial counterparts was what left the real marks with South Carolinians. During the various campaigns against the Cherokee, British and colonial officers repeatedly impugned both each others’ competence and courage. At least one British officer found himself so slighted that he issued a challenge to a duel. In the run-up to the Revolution, the hard feelings rooted in these controversies together with the generally poor reputation of standing armies in eighteenthcentury America could hardly have worked to pacify the heated situation.219 During these years of external threats and crisis, the provincial economy continued to be mostly prosperous, adding to the feeling of calm that pervaded the political scene. In 1729, the bounty on naval stores, which had been allowed to lapse in 1724, was reestablished, prompting renewed production in that sector. Except during the wars of the 1740s, rice also continued to be a valuable crop, which generally fetched the planters reasonable returns in European and Caribbean markets. South Carolina also benefited from the ‘discovery’ of another highly valuable staple crop to alleviate the dependence on rice. Indigo had been known as a potentially valuable crop for a while, but only in the 1740s was the method of processing it perfected to the point where it became commercially significant. In 1748, Carolina planters obtained a parliamentary bounty on 216 217 218 219

Weir, Colonial South Carolina: A History 117-21. Ibid., 268f. Edgar, South Carolina: A History 206f; Sirmans, Colonial South Carolina: A Political History, 1663-1763 340-42; Weir, Colonial South Carolina: A History 269-75. Ibid., 265-75.

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the product, further stimulating indigo growing. After that time, it also helped the rice farmers, in that it reduced overproduction of that crop. Increasingly, the backcountry also contributed to the production of export staples, where small farms, naval stores production and indigo plantations prevailed.220 Because agriculture was so successful, manufacturing and the trades labored at a disadvantage in South Carolina. Most production was home industry, with very little output and almost nothing for the imperial market. Quite to the contrary, South Carolina imported British goods worth thousands of pounds annually, most of which were consumption and luxury goods of an industrial nature, as the colony was self-sufficient as far as foodstuffs and other agricultural products went.221 There was one important manufacturing industry which produced for export, though: Shipbuilding was an important factor and South Carolina ships enjoyed a very good reputation, but compared to the production in Massachusetts, the industry in the southern colony remained insignificant.222 The most frequently remarked-upon facet of South Carolina society is its planter class, which modeled itself and its lifestyle after the British gentry. Their aspirations were fueled by country ideology, which allocated social and political control to independently wealthy gentlemen, who would altruistically administer the affairs of state without regard for their own private benefit. While the latter aspect was probably not always true, wealthy South Carolinians certainly liked portraying themselves in such a light, and just as certainly they left their mark upon the social and political life of the province.223 The planter gentry’s social aspirations showed very clearly in their lifestyles. Not only did an increasing number of them maintain representative country seats in the fashionable styles on or even in addition to their plantations, but they also maintained and cherished all the outward appurtenances of status. Furnishings of their houses became increasingly elegant and portraits by famous

220

221

222 223

Edgar, South Carolina: A History 144-49; Weir, Colonial South Carolina: A History 144-47, 50. Robert Olwell points out that the settlement of the backcountry only really began after 1740. Olwell, Masters, Slaves & Subjects 31. United States. Bureau of the Census. Historical Statistics of the United States, Colonial Times to 1970 II:1176f, Series Z 213-226. Unfortunately, no precise list seems to exist about the categories of goods imported from Britain, only the aggregate number have been compiled. Clowse, Measuring Charleston's Overseas Commerce 25. The latter contains a wealth of information about imports from the Caribbean, though. Weir, Colonial South Carolina: A History 161. Ibid., 229, 36, 38, 52-55. Richard Waterhouse has argued that the firm hold of the planter gentry upon South Carolina society was possible because of the great cohesion within their group. Not only were they almost equally wealthy, but as a group they were able to co-opt newer arrivals rather than obstructing their advance. Waterhouse, A New World Gentry: The Making of a Merchant and Planter Class in South Carolina, 1670-1770 45f.

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local and British painters appeared more frequently.224 At the same time, Charles Town offered all the social diversion and entertainment which this society of leisure might have demanded. Theatres, clubs, a library, concerts as well as a race track were available in the city.225 Under these circumstances, the South Carolina gentry soon developed a reputation for idleness and dissipation, compounded by gluttony and drunkenness.226 At the time that many other colonies saw major improvements in their education systems, such as the founding of local colleges and schools, South Carolina made little or no such gains. Even though a college had been contemplated, implementation of the plan had to wait until after the Revolution. Indeed, English and even continental schools remained fashionable with Carolinians, both at the secondary and university levels. Increasing numbers of South Carolinians also went to the northern colonies in search of a college education, while for law training the Inns of Court remained the favorite choice. For gentry women, education mostly consisted of training for domestic roles, even though preparation for polite society also played a role.227 After the Stono Rebellion, slave life became much more tightly controlled in South Carolina than it had been before. For the first time, the Assembly enacted a comprehensive law to regulate all aspects of slavery. The so-called Negro Act prohibited leaving plantations without written passes, banned the possession of all manner of property that could lead to a certain independence, and required that slaves be plainly dressed to show their status. The act also further reduced the rights of slaves in courts and stipulated that an owner should be compensated for his loss of property in cases where slaves were executed. The new slave law was a desperate attempt to reestablish that control over the slave population which simple population figures could not.228 The impact of acculturation was striking on both black and white Carolinians. Not only did slaves frequently attempt to imitate whites around them, both for emulation and mockery, but whites as well were influenced, e.g. by creolized language.229 Furthermore, slavery brutalized white society: Men who would have liked to be seen as benign, paternal and benevolent masters 224

225

226

227 228 229

Edgar, South Carolina: A History 193-99; Waterhouse, A New World Gentry: The Making of a Merchant and Planter Class in South Carolina, 1670-1770 96-109; Weir, Colonial South Carolina: A History 244, 36. See also Bushman, The Refinement of America. Edgar, South Carolina: A History 167, 72f; Waterhouse, A New World Gentry: The Making of a Merchant and Planter Class in South Carolina, 1670-1770 92-96; Weir, Colonial South Carolina: A History 238-40. Edgar, South Carolina: A History 176; Waterhouse, A New World Gentry: The Making of a Merchant and Planter Class in South Carolina, 1670-1770 95; Weir, Colonial South Carolina: A History 260. Edgar, South Carolina: A History 174-77; Weir, Colonial South Carolina: A History 248-52, 57. Olwell, Masters, Slaves & Subjects 62f. Ibid., 42, 50.

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were corrupted by their virtually boundless command over all aspects of their slaves’ lives, including widespread violence, sexual and otherwise.230 On the eve of the American Revolution, domestic political troubles were again brewing in South Carolina. While the constitutional disputes between Governor, Commons House and Council had been intermittent hot issues throughout the period under revision here, the Cherokee War brought many new issues to the fore. One of those was the settlement and development of the backcountry, which had experienced a boom since the arrival of royal control. However, the political setup of the state had remained largely unchanged, so that courts, churches, schools and political representation were virtually inexistent in the backcountry.231 Protests of backcountry representatives initially had the primary result of inflaming the passions of the lowcountry gentry, but eventually, the Assembly passed the necessary legislation to address the grievances. By then, however, the population had taken matters into their own hands, calling themselves ‘Regulators’ and exercising vigilante-style justice not only against thieves and robbers, but also against social outcasts. These acts of violence triggered the formation of an opposing force of ‘Moderators,’ the clash of the two almost leading to a civil war in the backcountry.232 In its later stages, South Carolina’s troubles with the Regulator Movement became intertwined with the early rumblings of the revolutionary controversy. In its attempts to curb the powers of the colonial legislatures, the crown wanted to avoid the further growth of the various assemblies and refused to accept any enlargements. Inclusions of newly settled areas would have to occur by reapportionment rather than simple increases in size. Accordingly, the crown scuttled the act that had established the backcountry parishes in response to the Regulators’ demands, as it did with the act establishing courts. In the latter case, the fact that judges were to be granted tenure during good behavior rather than during the customary King’s pleasure was the motive for disallowing the act. The impression was, however, that the government in London was sabotaging the legitimate interests of the backcountry, although local, lowcountry leaders in fact wanted to accommodate the hinterland, though without surrendering their control over the legislature.233 Thus, at the end of the Cherokee War and the Regulator controversy, there were hurt sensibilities on both sides of the Atlantic, an issue which was to weigh heavily in later quarrels.234

230 231 232

233 234

Ibid., 49ff. Weir, Colonial South Carolina: A History 275f. Edgar, South Carolina: A History 212-16; Weir, Colonial South Carolina: A History 277-79. A detailed account of the South Carolina regulator movement, which is distinct from its North Carolina namesake, can be found in Richard Maxwell Brown, The South Carolina Regulators (Cambridge, MA: Belknap Press of Harvard University Press, 1963) 39f. Weir, Colonial South Carolina: A History 278-84. Ibid., 284-89.

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The British policy of taxing the colonies after the close of the French and Indian War got off to a very bad start in South Carolina, since locally it was connected with yet another quarrel between Commons House and Governor. Governor Boone, in an attempt to establish royal prerogative and roll back the privileges of the Assembly, had, in this instance, met defeat. In retaliation, he refused to recognize newly elected representative Christopher Gadsden and dissolved the Commons when they seated him nonetheless. Thus, the Stamp Act arrived at a time when the Commons House was already highly sensitive about its rights and particularly about the rights of representation.235 In the following years, while opposition to the British taxation laws partially depended upon violence, the most important issues that would bring South Carolina to the brink of and finally into revolution hinged upon questions of the Assembly’s privileges. In this specific realm, however, London and the governors blundered badly and repeatedly, even though the Commons House was not exactly subtle in making its claims to privilege.236 The Commons House and the governor sparred first over the Massachusetts circular letter urging nonimportation against the Townshend duties. Against the express wishes of the governor, the Commons endorsed the letter and the governor reacted by dissolving the Assembly.237 Another major controversy ensued after the Commons instructed the treasurer to send 1500 pounds to support British renegade politician John Wilkes. That step infuriated the government in London not only because South Carolina openly defied it, but also because the Commons had made the grant without the participation of the Governor and Council. The ministry’s answer threatened severe penalties to any colonial treasurer who would dare spend money without the participation of Council and Governor. The South Carolina Commons could not retreat before that threat without losing face and its control over money bills.238 After an extended standoff, Governor Montagu attempted to force the issue by convening the Assembly at Beaufort rather than customary Charles Town, expecting his most ardent opponents not to show up. When they – surprisingly – still did, he sent them back to Charles Town, after having kept them waiting for three days. The Commons were incensed over what they considered harassment and abuse of privilege, not knowing that the relocation back to Charles Town was the result of a new, more conciliatory stance the ministry had ordered Montagu to adopt. After further debate, prorogations, dissolutions and new

235

236 237 238

Jerome J. Nadelhaft, The Disorders of War: The Revolution in South Carolina, 1st ed. (Orono, ME: University of Maine at Orono Press, 1981) 3; Weir, Colonial South Carolina: A History 292f. Ibid., 305. Ibid., 302f. Edgar, South Carolina: A History 218; Nadelhaft, The Disorders of War 3; Weir, Colonial South Carolina: A History 305-07.

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elections, Montagu decided to abandon South Carolina, leaving the relations between the colony and the ministry in shambles.239 The next step in the escalation came from the Council. Attempting both to establish itself as a constitutional force and at the same time to defend the British position in the struggle, it tried to force the Commons’ hand by obstructing legislative business. When the printer of a pamphlet opposing the Council’s position was imprisoned for contempt, freed on habeas corpus by two justices of the peace who were members of the Commons, and subsequently recommitted by the Chief Justice who was a member of the council, the underlying local issues and the more overarching, imperial questions were back at hand, fused: Which house of the assembly was to be supreme? Was the council an independent chamber of the legislature at all? Where was the locus of power and sovereignty?240 When events turned violent with Boston protesters throwing entire cargoes of tea overboard, the reaction in South Carolina was mixed. Initially, the violence and destruction of property had met opposition in the colony, but the British reaction turned the tables, in that South Carolinians considered it overly harsh and, in the end, threatening to their own interests. Accordingly, they participated both in the boycott of British goods as well as in the Continental Congress called to Philadelphia, albeit reluctantly in the case of the former.241 Further measures by the ministry seemed to corroborate that the rights of the colonies, and South Carolina specifically, were indeed in danger. Even before the rebellion broke out openly at Lexington and Concord, the British government delivered evidence of attempts to ban all trade outside the empire; even reports about British incitements to Indian rebellion surfaced. Under these circumstances and the distrust existing between South Carolina and the imperial government, it was hard to obtain a reconciliation as neither side could retreat without losing face.242 When the situation in Massachusetts deteriorated into a war and the provisional government of South Carolina began to prepare resistance, the loyalties of the inhabitants of the colony were strongly divided. The fault lines did not only run between backcountry and lowcountry. The backcountry especially was deeply divided, as the animosities between ‘Regulators’ and ‘Moderators’ had often receded from view, but never really subsided. Almost immediately, something very akin to civil war enveloped the backcountry, when loyalist and revolutionary sentiment became fused with the older issues. On top of such

239 240 241 242

Ibid., 307-10. Ibid., 310-12. Ibid., 314f. Ibid., 318f.

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internal dissensions, war with the Cherokee broke out again, contributing to the unsettled state of the backcountry.243 War in earnest came to South Carolina in June of 1776, when British troops made a first attempt to take Charles Town. Repulsed at the gates of the city, it took until 1779 before the British returned, even though the city only fell in May of 1780.244 An attempt by continental troops to relieve the state failed, and British troops began a repressive regime against all those whose loyalty to the crown was wavering. From then on, skirmishes between British and loyalist troops and rebels, as well as an increasingly brutal and irregular war ravaged the backcountry, in which both sides committed their share of atrocities. After a number of setbacks, the British military found itself contained in Charleston again, before it evacuated the city in 1782.245 Even before the revolutionary war had fully begun and before Independence had been declared, South Carolina considered placing its government upon a new foundation. Since the provisional government had taken over, the royal charter was clearly no longer in operation. Accordingly, the provincial congress requested an opinion of the Continental Congress about how to proceed, and in accordance with that body’s suggestions, established a new, temporary constitution to carry on the most necessary government functions. The document, enacted by the Congress rather than a constitutional convention assembled specifically for that purpose, contained important novelties such as better representation of the backcountry, an upper house of the legislature separate from the executive council, judicial tenures during good behavior, and a guarantee to the Commons House that it alone could originate money bills. The president retained the executive veto, which most other states abolished.246 Once independence had been declared, a more permanent structure seemed to be in order, and in 1778 South Carolina revised its government again. Representation of the upcountry was increased further, with the promise of periodic future reapportionments. At the same time, the rights of dissenters were significantly strengthened by a stipulation that any group of 15 or more male protestants could obtain incorporation and be considered part of the established Anglican Church.247

243 244 245 246 247

Edgar, South Carolina: A History 242f; Nadelhaft, The Disorders of War chapter 1; Weir, Colonial South Carolina: A History 321-23, 30. Nadelhaft, The Disorders of War 52f; Weir, Colonial South Carolina: A History 328-30, 35. Edgar, South Carolina: A History 232-40; Nadelhaft, The Disorders of War 55-69; Weir, Colonial South Carolina: A History 335-37. Nadelhaft, The Disorders of War 29-34; Weir, Colonial South Carolina: A History 326f. Nadelhaft, The Disorders of War 37-43; Weir, Colonial South Carolina: A History 332f.

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2.3. Under the New Nation National Even before peace had been concluded, the newly formed United States had attempted to put its political affairs upon a regular and orderly footing. For that purpose, Congress had proposed the Articles of Confederation in November of 1777 and submitted them to the states for ratification.248 This first American constitution formulated a plan of government in which only little power was vested in the central government, whereas many important powers and, most particularly, sovereignty remained with the states. Congress, the only institution of government at the national level, was entrusted with legislative, executive as well as judicial functions. It would manage foreign and military affairs, disputes between individual states, as well as regulate money and weights and measures. The Articles of Confederation generally kept Congress on a very short leash: Congress was given no substantial right to regulate commerce and no independent income. All monies Congress wanted would have to be obtained through requisitions from the states. Similarly, Congress was not granted any method of enforcing its decisions against recalcitrant states. Given the fact that the states had just rebelled against decisions of a British central government that was judged too powerful and not sufficiently responsive to its subjects, it is hardly surprising that the delegates were hesitant to establish a new powerful centralized government while they were still trying to throw off the old one. The powers of the proposed confederation government did not prove to be the primary point of contention, though. By the end of 1778, eleven states had ratified the Articles. South Carolina gave the Articles of Confederation a rather speedy assent, as did Massachusetts. The Bay Colony, in accordance with its political philosophy and history, first submitted them to the towns for consideration and suggested amendments.249 Delaware ratified in February of 1779, leaving Maryland alone in its rejection of the proposed constitution.250 Strife had arisen over the western land claims of some states. Those states that did not have charter boundaries from sea to sea believed that they would be at a disadvantage in the future, assuming that the landed states would continue to grow more populous, while they themselves

248

249 250

Merrill Jensen, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774-1781 ([Madison, WI]: University of Wisconsin Press, 1948) 183. Ibid., 187-89. Ibid., 195-97.

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would stagnate and fall into insignificance.251 Thus, they demanded that the landed states cede their claims to the United States to put all states on the same footing. A number of states had such demands, but only Maryland delayed ratification of the Articles to enforce its position. Only in 1781, after New York and Virginia had ceded their western claims did Maryland ratify the Articles and only then did the confederation obtain a constitutional basis.252 The peace treaty which concluded the war was negotiated and signed in Paris in 1782. Britain had begun to doubt the success of her arms after the surrender of General Cornwallis at Yorktown and had begun to sound out the position of France and the American commissioners in Paris. Recognition of American independence was not the only contentious issue treated between the negotiators; fisheries, boundaries, prewar debts, as well as reparations and compensation of loyalists all had to be settled. Furthermore, France had to agree to peace talks. Finally, a preliminary treaty was agreed upon, pending ratification in Britain and the United States. After France did the same, an armistice was proclaimed, effectively bringing the war to an end.253 Even before the Articles had been ratified and put into operation, proponents of a greater role of the national government had been advocating a strengthened role of Congress, in order to make a more solid impression internationally than the Continental Congress had been able to do with its limited powers. Most particularly, this was to apply to confederation finances, which were in a dismal state: Both internationally and domestically, huge debts had accrued and Congress had trouble servicing both. It was out of such considerations that the Impost of 1781 was proposed, a 5% tax upon all imports that was to be levied until the final discharge of the debt. After its rejection, the attempt was renewed in 1783, this time limited to 25 years, but it was also rejected. A last straw was Congress’ request to be vested with a power to regulate commerce. This power, proponents argued, would give the United States an effective retaliatory tool against British discriminations in trade with her former colony. Again, the measure was rejected by the states. To overcome the widely perceived impasse, Virginia proposed a convention, which would make suggestions for revisions of the Articles. This 1786 Annapolis Convention, however, was just as unsuccessful, as many states were not even represented. Accordingly,

251

252 253

Jensen explains the many implications and complications of settling the question over western lands in Merrill Jensen, The New Nation: A History of the United States During the Confederation, 1781-1789, 1st ed. (New York: Knopf, 1950) 8-11. Jensen, The Articles of Confederation 228, 35-38. Jensen, The New Nation 6-18. The Treaty of Paris is usually dated to 3 September 1783, when the final treaty was signed. France and Britain agreed upon a preliminary peace treaty on 20 January 1783.

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those present called for yet another convention to meet in Philadelphia in May of the following year.254 Between the meeting at Annapolis and the Philadelphia Convention, further events demonstrated the weakened state of the Confederation. Farmers in western Massachusetts under the leadership of Daniel Shays undertook to alert the state’s political establishment to their economic plight. In what came to be known as Shays’ Rebellion, the westerners closed state courts and defied the authority of the state government. Unable to suppress the insurrection with the militia – most militiamen sympathized with or were themselves among the insurgents – and unable to obtain support from the powerless and financially stripped Congress, the state government raised troops with the assistance of private financiers. These troops managed to quell the rebellion early in 1787, but the event had demonstrated, in the eyes of those who wanted greater power for the national government, in all clarity the weakness of the Confederation government and the necessity to amend the Articles.255 It was in such a climate that delegates from all states came together in Philadelphia in March of 1787 to confer upon potential revisions of the Articles of Confederation. After months of deliberations in the excessive heat of Philadelphia’s summer, the delegates reported a new constitutional system that would not amend the Articles, but rather replace them with a strong centralized government with an income, a military and coercive powers over the states. Despite considerable opposition, the supporters of the new system of government, who called themselves Federalists, managed to obtain its ratification in all thirteen states, even though often enough they did so with less than savory methods.256 254

255

256

Jürgen Heideking, Die Verfassung vor dem Richterstuhl: Vorgeschichte und Ratifizierung der Amerikanischen Verfassung 1787-1791 (Berlin/New York: W. de Gruyter, 1988) 28f; Jensen, The New Nation 63-67, 73-65, 420f. Massachusetts and South Carolina had given their assent to both impost proposals. Especially Massachusetts had generally fulfilled its the requisitions from Congress rather diligently. Myron F. Wehtje, “Boston and the New Nation,” Historical Journal of Massachusetts 15, no. 1 (1987). For the study of the economic considerations surrounding the enactment of the impost see Robin L. Einhorn, “Slavery and the Politics of Taxation in the Early United States,” Studies in American Political Development 14 (2000). The role Shays’ Rebellion may or may not have played in bringing about of the Constitution is an issue of debate. David P. Szatmary and Van Beck Hall see it as instrumental in that development, while Robert A. Feer insists that the movement towards a new constitution was well under way even before Shays’ Rebellion. See Robert A. Feer, Shay's Rebellion (New York: Garland, 1988); Robert A. Feer, “Shays's Rebellion and the Constitution: A Study in Causation,” New England Quarterly 42 (1969); Hall, Politics without Parties 261; David P. Szatmary, Shays' Rebellion: The Making of an Agrarian Insurrection (Amherst, MA: University of Massachusetts Press, 1980) chapter 7. The best account of the movement for a new constitution, the drafting and the ratification of the constitution is Heideking, Die Verfassung vor dem Richterstuhl. For the documentary record see the DHRC.

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In order to achieve ratification, the Federalists had to concede a number of points to the opposition. In some states, they had to accept the Antifederalists’ calls for amendments to the Constitution, among which was the demand that a Bill of Rights be added to the document. Elected to the new House of Representatives upon the promise that he would support amendments, James Madison of Virginia brought the Bill of Rights on the way. He introduced a number of amendments into debate and after many delays both houses passed a Bill on September 25, 1789, proposing twelve amendments to the states. After more than two years, Virginia was the eleventh state to ratify the last ten amendments, putting them into operation.257

Massachusetts Massachusetts had not been physically touched by the war since the British evacuation of Boston in March of 1776. However, it was hurt economically. The Bay Colony had lived very well off the carrying trade of the other continental colonies within the empire before the Revolution, but that trade had collapsed: The peace treaty and independence placed the United States outside the British trading system, and consequently Britain placed severe limitations on American ships trading with Britain. The coastal towns were hit hardest; the hinterland, which was still largely geared toward subsistence farming, remained, for a time, unaffected by these new disabilities.258 Other circumstances, however, did draw the hinterland into the post-war depression that hit the newly-independent states. Both the desire of Massachusetts citizens to buy long-missed British goods and the wish of British merchants to continue their pre-Revolutionary trade led to an import boom during 1783 that was largely financed upon credit. Apart from growing indebtedness, it also led to a drain of specie out of the state to Britain. The fact that the state had worked hard to retire its paper money during the Revolutionary War led to a certain reluctance to resort to that means anew, in the end stifling local trade due to the lack of a medium.259 In Massachusetts this situation contributed to the development of a chain of debt, in which country farmers owed 257

258 259

Patrick T. Conley and John P. Kaminski, eds., The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison, WI: Madison House, 1992) xxif. Heideking counts Virginia as the tenth state, probably counting the original states only and excluding Vermont, which had ratified the Constitution and all twelve amendments on 3 November 1791. Heideking, Die Verfassung vor dem Richterstuhl 852. Ibid., 28; Curtis P. Nettels, The Emergence of a National Economy, 1775-1815 (New York: Holt Rinehart and Winston, 1962) 52; Szatmary, Shays' Rebellion 19-22. Oscar Handlin and Mary Handlin, “Revolutionary Economic Policy in Massachusetts,” William and Mary Quarterly 4, no. 1 (1947): 19-23; Nettels, The Emergence of a National Economy chapter 3; William B. Norton, “Paper Currency in Massachusetts During the Revolution,” New England Quarterly 7 (1934): 64f.

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money to local merchants, who owed money to coastal wholesalers, who in turn owed money to British merchants.260 In addition to this chain of debt, Massachusetts had vowed to repay all its war creditors in specie. In order to be true to such promises, Massachusetts raised its taxes, primarily on land. These again bore hard on the rural population, the majority of which had, even under the best of circumstances, little access to money. Under the prevailing shortage of coin, these debtors were hit doubly hard: By increased taxes and the demands from creditors, both of which now had to be satisfied in money rather than – as had previously been common – in kind. Under these circumstances, trouble was brewing in the Massachusetts backcountry.261 The chain of debt led to a sectional conflict within Massachusetts. Creditors, largely associated with trade and the market economy on the coast increasingly found themselves at loggerheads with their subsistence-farmer debtors in the backcountry. The policy of deflation and the scrupulous repayment of war debts in specie seemed to favor the elite in the coastal towns over the inland farmers. When the ordinary political channels of petitions to the state government and representation in the General Court did not afford them remedies for their plight, the farmers chose alternative means.262 One of those means was to obstruct the proceedings against debtors by closing the courts in which they were being prosecuted. Under the leadership of Daniel Shays the rebels defied the state government for months before finally being defeated by state troops. The fact that these troops had been raised in the east, with money obtained from private citizens who were interested in maintaining prosecutions for debt caused further disenchantment of the backcountry farmers with the coastal elite.263 Accordingly, when the exact same interest groups who had opposed the Shaysites and advocated the forceful suppression of their insurrection strongly advocated the draft constitution submitted by the Philadelphia convention, the backcountry was wary: Those primarily interested in further powers for Congress seemed to be the merchants and the coastal elites, for whom congressional regulation of trade would have brought advantages. With all states acting in concert, Britain would no longer be able to play the states off against one another. For those in the backcountry, the proposals only seemed to guarantee even more power for the elite in the coastal towns. Hence, it mostly met with opposition in the hinterland.264 260 261 262 263 264

Szatmary, Shays' Rebellion chapter 2. Nettels, The Emergence of a National Economy 86-88; Norton, “Paper Currency in Massachusetts During the Revolution,” 69. Szatmary, Shays' Rebellion chapter 3. Ibid., chapter 4. Edgar, South Carolina: A History 243f; Heideking, Die Verfassung vor dem Richterstuhl 549-51, 63-71.

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Even in the constitutional convention, Massachusetts delegates had been divided over the merits of the proposed constitutional system: Rufus King and Nathaniel Gorham advocated the proposed constitution as the country’s last hope, while Elbridge Gerry – one of three delegates who had refused to sign the document – feared the loss of everything the state had fought for in the Revolution. In the state ratifying convention, many delegates, especially from the western areas of the state vociferously opposed the draft as dangerous to the existence of the states and the liberty of its citizens. The supporters of the document managed to obtain a ratification by the Massachusetts convention, despite this widespread opposition: They suggested to ratify and to propose some recommendatory amendments, which were to be considered by the first Congress elected under the new system. When the Bay Colony ratified on February 6, 1788, it did so by a very narrow margin: 187 delegates voted in favor, while 168 persisted in their opposition. Massachusetts was the sixth state to ratify, but it was the first to recommend amendments to the constitution. This innovation proved highly expedient, for it not only assuaged the opposition’s fears, but also enabled the Federalists of other states to obtain ratification in circumstances where the Antifederalists would have otherwise carried the day.265 The Bay Colony’s first congressional delegation was mostly Federalist. When amendments to the constitution were actually proposed in Congress, they were lukewarm at best. Some stated openly that their agreement to amendments in the state convention had been a ploy to overcome Antifederalist opposition. Others believed that more pressing matters ought to be attended to first, and only then, if at all, should changes to the constitution be considered.266 Once Massachusetts was actually confronted with the amendment plan, the urgency of the ratification debates had abated: The two houses of the legislature never voted on the same resolution, so that Massachusetts did not ratify the Bill of Rights until 1939.267 For some in the Bay Colony, the confederation period was not just a difficult time, however. The situation of African Americans, for example, improved significantly in the 1780s. After the new constitution had been established in 1780, proclaiming the equality of all humankind, two slaves used the state’s courts to sue for their rights under the 1780 Bill of Rights. After appeals, both Quok Walker and Elizabeth Freeman obtained their freedom, when the Supreme Judicial Court ruled in 1783 that slavery was impermissible under the 265

266 267

Ibid., 972-74, 640f. A very good summary of the issues at work in Massachusetts can be found in John J. Fox, “Massachusetts and the Creation of the Federal Union, 17751791,” in The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1988). Heideking, Die Verfassung vor dem Richterstuhl 835f. Conley and Kaminski, eds., The Bill of Rights and the States xxii; Heideking, Die Verfassung vor dem Richterstuhl.

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constitution. Massachusetts was thus the first American state to abolish slavery within its boundaries.268

South Carolina South Carolina was among the states that were hit hardest by the war and the economic upheaval of the post-war years. Not only had the state been ravaged by actual fighting, but the fighting had often purposely been extended to include the population: Plantations had been destroyed and infrastructure laid to waste. British troops had carried away thousands of slaves, many more had absconded.269 White South Carolinians considered this primarily an economic loss: From their perspective, their investments in the labor force had been lost, their property stolen. In the plantation system that depended so much upon forced labor, the South Carolina economy was severely hit by such dislocations.270 Nonetheless, the state’s trade made a speedy recovery. Even though some former markets were now closed for South Carolina exports, the volume of trade, both of imports and of exports, rose. However, the necessity to rebuild much of the state’s infrastructure combined with easily available credit caused a huge debt problem: Much of the South Carolina elite overextended itself financially, buying much more on credit than immediate exports could be expected to cover. These troubles were compounded by the fact that the harvests of 1783 and 1784 were well below expectations, due both to partial crop failures and the ongoing recovery of plantation infrastructure.271 Thus, like Massachusetts, South Carolina faced trouble over bad credit and overburdened debtors. There was, however, one major difference: In Massachusetts, it will be remembered, small subsistence farmers with precarious access to the political system were the debtors, while in South Carolina the tidewater planter elite which held a huge stake in the government was the main debtor bloc.272 Accordingly, the debtors of South Carolina had legislative options to shield themselves from creditors’ legal action.273 Many different measures were proposed and enacted that had a bearing on the legal standing of debtors and creditors. Primarily, the legislature passed the Pine Barren Act, which made land receivable for debts. The name derives from the fact that mostly poor land, greatly overvalued pine barrens, were offered ostensibly to satisfy creditors’ demands. A legal tender law was also 268

269 270 271 272 273

Even though the abolition of slavery seems so simple and so much matter of fact, the issue was much more complex than lore would have it. See Arthur Zilversmit, “Quok Walker, Mumbet, and the Abolition of Slavery in Massachusetts,” William and Mary Quarterly 25, no. 4 (1968) for a good survey. Nadelhaft, The Disorders of War 62. Edgar, South Carolina: A History 247; Nadelhaft, The Disorders of War 90. Ibid., chapter 8, 155f. Ibid., 153f, 57f. Ibid., 159.

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enacted and, later, an installment law, which allowed for the piecemeal payment of debts.274 Generally, the South Carolina elites managed reasonably well to insulate themselves from the claims of their creditors and continued to live comfortably, even though this meant the ruin of others, as was evidenced by the bankruptcies of a great number of London trading houses engaged in North American trade and credit.275 In addition to the economic impact of the war, the peace settlement within South Carolina caused much friction. The assemblies that sat during and immediately after the British occupation of Charleston espoused policies that led to considerable discontent among parts of the population. Not only did the assemblies seem to favor the lowcountry planter class in their measures, but they also seemed to disregard the interests of the rest of the state’s white population. Among the most offensive measures was the extreme leniency towards loyalists and those lowcountry planters who had, after initially supporting the revolutionary movement, resumed their loyalty to Britain once expedience and interest demanded it. Furthermore, the government allowed British merchants to remain in Charleston and continue trading on a favored basis, even before the war was officially over. This approach of favoring the lowcountry planters, whose economic, political and social recovery was thus facilitated, while at the same time seemingly condoning disloyalty and rewarding turncoats and opportunists, did not sit well with the backcountry which had suffered for the perseverance during the war. As such, the immediate post-war political settlements boded ill for the quiet future of the state.276 Perhaps the most significant development of the 1780s in South Carolina was the rise of the backcountry. Since the end of the French and Indian War, the hinterland had experienced a significant growth in population, with many immigrants moving south along the Appalachians from Virginia. At the same time, it was discovered that the backcountry could successfully support a plantation economy, albeit not of rice but of indigo and, increasingly, tobacco. Later, in the 1790s, cotton would also become an important staple there.277 As a clear symptom of the growth of backcountry influence and power, in 1786 a law was passed eventually to relocate the seat of the state government from the coast to Columbia, a newly-planned town at the confluence of the Broad and Saluda rivers.278 The enactment of a new tax system took the value of land into

274 275 276

277 278

Ibid., chapter 9. Ibid., 156f. Ibid., chapters 5 and 6. Charles Singer examines the treatment of loyalists in some detail in Charles Gregg Singer, South Carolina in the Confederation (Philadelphia, PA: Porcupine Press, 1976) chapter 5, especially 113-19. Nadelhaft, The Disorders of War 143f. Ibid., 135-40. The actual move of the state government to Columbia only took place in 1790.

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account, taxed slaves, and established county courts, thereby removing some of the major disabilities of backcountry farmers.279 Perhaps the most important aspect of the rise of the backcountry was the growth of a plantation economy and, concomitantly, of slavery there. The impact of this development was not merely economic, but had a far-reaching impact upon South Carolina politics. Before the 1780s, most tidewater planters had seen the backcountry as a refuge of social low-life and criminals, who could be depended upon for nothing but trouble. When the social and economic make-up of the backcountry came to resemble the tidewater’s more and more, the backcountry was perceived as less of a threat. Rather, a more or less unified planter class began to develop which gave South Carolina’s elite and its elite politics much of the stability that has so frequently been commented upon both by contemporaries and modern historians.280 Even though they still sold their produce abroad profitably, many South Carolinians, especially lowcountry planters, became acutely aware during the confederation period that their trade was being hampered by the exclusion from the British mercantilist system and similar discriminatory practices of other European nations. These troubles were compounded by the inability of the Confederation congress to retaliate against discriminatory procedures. Specifically, the stipulation that rice could only be carried to the West Indies in British ships and the total exclusion of rice from the Portuguese market aroused the ire of both merchants and planters. Accordingly, many of those involved in foreign trade were disposed in favor of amending the articles of confederation and supported the call for a revising convention to meet in Philadelphia in 1787.281 The reaction of South Carolina was rather different, though, when the work of the convention was published. Opposition, largely centered in the backcountry, was vocal, though not effective in obstructing the ratification of the constitution. Ratification was easily achieved on 23 May 1788 by 149 votes in favor to 73 opposed, despite overwhelming popular opposition to the document.282 The South Carolina ratifying convention annexed its ratification with a 279 280 281

282

Ibid., 126, 35f. The argument of the unified planter class is most prominently advanced by Klein, Unification of a Slave State. Nadelhaft, The Disorders of War 173-75. South Carolina exerted itself forcefully in support of a stronger Confederation government. Singer, South Carolina in the Confederation chapters 3 and 4. Heideking, Die Verfassung vor dem Richterstuhl 972. Nadelhaft, The Disorders of War 180 cites 143 votes in favor, which appears to be typo. See Jerome J. Nadelhaft, “South Carolina: A Conservative Revolution,” in The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1988) 175. which has the correct number of 149 in favor. The inadequacies of South Carolina’s system of representation caused this

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number of amendment proposals – as had Massachusetts – and indeed they were based very much upon the Massachusetts suggestions.283 The results of South Carolina’s first federal election very much reflected the state’s split over the constitution: Among the first federal representatives were three (out of five) Antifederalists, while the senators – elected by the state legislature in which the Federalist lowcountry was overrepresented – were two staunch federalists.284 Once proposed by Congress, the amendments were quickly passed by South Carolina. Being the fourth state to ratify, the state legislature accepted all twelve amendments on 19 January 1790.285 All the while, South Carolina’s economic troubles continued. The debt crisis had not abated, indeed the increasing weight of the debt felt by the British creditors made executions and foreclosures ever more likely. Moreover, the hardships of some planters, particularly those of the backcountry, were exacerbated by Britain’s exclusion of American indigo, a crop that had formerly fetched great returns. Thus, in 1788, the state legislature voted to extend its earlier installment act but declined to accede to the backcountry’s most urgent demand: the introduction of a paper currency. The lack of circulating medium had made the effects of the debt crisis and foreclosures even harsher, as – everything selling much under value at auctions – not even property sales could sensibly contribute to paying off debts. Generally, this kind of debtor legislation was seen as just as partial to the lowcountry as the earlier solutions of 1785 had been.286 A final major political development of the era under consideration here was South Carolina’s constitutional reform of 1790, giving it the third new constitution since the Revolution. Although at first glance the constitution of 1790 was very similar to the one of 1778, it contained many innovations which generally tended to give the backcountry greater power and to curb the influence of the Charleston area aristocracy. It was the first South Carolina constitution written by a specifically convened constitutional convention rather than being a simple legislative enactment. The requirement that two thirds of both houses of the legislature concur in any amendments made future changes much harder to obtain. It also promised more stability of the frame of government than before, when the legislature had repeatedly changed parts of the constitution. Among the most important changes to the structure and operations of the government were the improved representation of the backcountry – even though Charleston remained overrepresented –, the higher quorum required for the legislature to do business and the move of the government to Columbia. The latter most

283 284 285 286

very lopsided result. Heideking, Die Verfassung vor dem Richterstuhl 547-49; Nadelhaft, The Disorders of War 180. Heideking, Die Verfassung vor dem Richterstuhl 651f. Nadelhaft, The Disorders of War 192. Conley and Kaminski, eds., The Bill of Rights and the States xxiif. Nadelhaft, The Disorders of War 192-202.

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likely brought a greater growth of backcountry power than the changes in representation, as the difficulties of traveling to the sessions that backcountry delegates had contended with throughout the colonial and revolutionary period now rested on the lowcountry men. Further changes that tended to even power relations between the tidewater and the upcountry lay in provisions for rotations of office, the elimination of the governor’s veto and the exclusion of double office-holding. Moreover, after the earlier constitutions had already established far-reaching religious toleration, the constitution finally brought complete disestablishment and religious freedom, requiring only that the public peace not be disturbed.287 It seems sensible to end this very rough sketch of the political, cultural and social developments of Massachusetts and South Carolina at this point. It must be remembered that it cannot be my intention here to supply a complete comparative history of those two colonies and states, but that the purpose of this chapter is to outline the vital context for the existence and development of gun culture. The following chapters will inquire into the latter issue.

287

Ibid., 203-11.

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The same facts impress us differently. This is enough to make me suspect an error in my process of reasoning tho’ I am not able to detect it. (Thomas Jefferson to John Adams, 11 July 1786, in: Jefferson Papers X:124f.) Demographic studies based upon seventeenth- and eighteenth-century vital records cannot be as accurate and as reliable as those based upon modern records. Studies such as mine are approximations, at best, of reality. The reader ought to bear this limitation in mind, since statistics have a way of appearing more reliable and authoritative than they actually are. (Philip J. Greven, Four Generations: Population, Land, and Family in Colonial Andover, Massachusetts. Ithaca, NY/London: Cornell University Press, 1970, 6f.)

3.1. Probate Records in Historical Research For a long time, historians have found probate records an interesting resource in different fields of research. From a perspective of legal history, for example, probate records can give valuable information about the organization of colonial judicial and court systems and about conventions of composing the legal document that is a will, while cultural historians might be interested in the manner the probating of wills created a very rational, dispassionate way of dealing with death or the inheritance patterns they document. The main focus, however, has been on social and economic history, to the pursuit of which probate records seem unusually suitable. Probate records – wills, inventories, accounts of administration – are judicial documents that primarily convey information about a decedent’s possessions and his debts at the time of his death.288 The probate process originated in the necessity of assuring the orderly transfer of property to the intended heirs and to ascertain the survival of the decedents’ family. Thus, their purpose was primarily economic in nature. Probate records, inventories in particular, contain valuable information for economic and social historians. They show not only which kinds of goods decedents possessed but the value of those possessions. The itemized character of inventories is thus of great interest to historians of material culture, as it gives them insight into the existence and prevalence of

288

Gloria L. Main, “Probate Records as a Source for Early American History,” William and Mary Quarterly 32, no. 1 (1975): 90.

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certain goods at certain times, thus revealing patterns of standards of living, of luxury and of (necessary) frugality.289 Apart from the economic aspects of probate documents, historians can also derive important information about social structures of the colonial societies, as not only wealth or poverty may be of interest. Probate records often contain information about a decedent’s kinship ties and about his neighborhood, too. A will, for example, which enumerates a great number of children may provide information about the size of a family; conditional bequests – to the widow, for example, until she remarries – may be telling about widowhood and its social stature; and the names of neighbors on the documents, as witnesses or as administrators, may serve to identify who lived next to whom or, if certain names are found in a significant number of documents, the local dignitaries. Philip J. Greven has used probate records very effectively in the sense described above in his study Four Generations: Population, Land, and Family in Colonial Andover, Massachusetts. Families there, Greven showed, were remarkably stable and even prosperous during the first generations. The most important conclusions derived from probate records were that families in Andover were very patriarchally structured: Until the middle of the eighteenth century, fathers retained control over their land and property until very late in life, thus keeping their sons in economic dependency. Accordingly, men married late and remained close to their families rather long.290 Despite such fascinating studies, probate records have been used most effectively not one by one, but by making use of the entire “glorious profusion” in which they exist.291 It is by examining them collectively rather than individually – with the help of quantitative methods – that historians have made most successful use of such documents, as their common properties can be discovered more easily in that way. Furthermore, sampling allows statements about the entire population even though only a smaller, more manageable number will be studied. The combination of probate records and quantitative measures has returned fascinating results for the American colonial and revolutionary period. While some scholars had made use of probate materials to flesh out and illustrate their studies before,292 Robert Brown’s 1955 Middle-Class Democracy was the first study to apply statistical analysis.293 Analyzing probate records, he concluded that de289 290 291 292 293

Francis W. Steer, “Short Guides to Records: Probate Inventories,” History 46 (1961): 290. See Appendix I for an example of an inventory. Philip J. Greven, Four Generations: Population, Land, and Family in Colonial Andover, Massachusetts (Ithaca, NY: Cornell University Press, 1970). Main, “Probate Records as a Source for Early American History,” 89. James Truslow Adams, Provincial Society, 1690-1763 (New York: The Macmillan Company, 1927) 71-74; Greene, The Negro in Colonial New England. Robert Eldon Brown, Middle-Class Democracy and the Revolution in Massachusetts, 1691-1780 (Ithaca, NY: Published for the American Historical Association by Cornell University

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spite property qualifications for the franchise, the vast majority of farmers in colonial Massachusetts were qualified to vote. Another seminal study in the use of probate records was Jackson Turner Main’s The Social Structure of Revolutionary America. Claiming that most studies of class in colonial America had “been based upon guesswork rather than fact,”294 Main argued that the evidence in probate inventories supported the assumption that discernible economic classes existed in colonial America. Some years after Jackson Turner Main two scholars entered the scene who have since done the most innovative and ground-breaking work with probate records. Alice Hanson Jones and Gloria Lund Main have written widely on economic history, standards of living, and the development and distribution of wealth during the colonial period. More specifically, they studied the value of probate records in American history and statistical methods which allow much wider-ranging conclusions and generalizations about the entire colonial population based upon manageable samples of probate inventories. In 1977, Jones brought together the most important results of years of research in the three volumes of American Colonial Wealth, where she not only chronicled her research and methods, but also, for the first time, edited a considerable number of probate inventories, thereby opening probate research to a wider audience.295 In a further step, Jones compressed her findings on the distribution of wealth on the eve of the American Revolution in Wealth of a Nation to Be, published in 1980.296 There, she undertook to flesh out the “impressionistic data” previously used to underscore the impression that Americans generally “lived well” by the 1770s with statistical analysis.297 As her analysis of samples of colonial probate records showed, Americans possessed considerable wealth on the eve of the Revolution. The amount of wealth, Jones shows, “compared favorably” with that of Great Britain, and common people were probably even better off than their contemporaries in either Britain or continental Europe.298 Most importantly, however, she refined the use and application of sampling techniques with inventories to a point where reviewers could not but admit that despite the seemingly small samples, Jones’ findings were valid.299

294 295 296 297 298 299

Press, 1955); Bruce C. Daniels, “Probate Court Inventories and Colonial American History: Historiography, Problems, and Results,” Histoire Sociale/Social History 9, no. 18 (1976): 389. Main, The Social Structure of Revolutionary America 3. Alice Hanson Jones, American Colonial Wealth: Documents and Methods (New York: Arno Press, 1977). Alice Hanson Jones, Wealth of a Nation to Be: The American Colonies on the Eve of the Revolution (New York: Columbia University Press, 1980). Ibid., 1. Ibid., 341. See for example Daniels, “Probate Court Inventories and Colonial American History,” 391.

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Less massive but equally as important was Gloria Lund Main’s Tobacco Colony, in which she set out to explore the social and economic history of early colonial Maryland. Again, probate records played a major role in describing and analyzing the development and structures of wealth of that colony. Main discovered that while the average amount of wealth of probated decedents increased continually, the top strata of society benefited to a much greater extent than the lower echelons. Indeed, Main was able to quantify the growing inequality in Maryland’s population.300 Furthermore, the wealth Marylanders had achieved by 1700 compared very favorably with numbers for the entire South on the eve of the Revolution.301 Finally, Main succeeded – with the help of probate records – in presenting a multi-facetted picture of colonial Maryland that included many aspects of everyday life which had frequently been overlooked or neglected. Since Tobacco Colony, a variety of smaller studies using probate records have been published, mostly elaborating some point of theory and statistical applicability. Enlarging on what was by then an established spectrum of historical probate research, Carol B. Stapp moved in a different direction: She undertook to shed light upon the lives of African Americans – “a hitherto alleged [sic] inarticulate constituency” – in Boston before the Civil War.302 Probate documents for that group, Stapp argues, show the importance of community networks rather than just kinship ties within the African American community of antebellum Boston. She further suggests that splitting the decedents’ inventoried possessions into three categories – necessities, amenities and luxury goods – and analyzing the values of those categories relative to each other provides a better indicator of wealth, and the security of that wealth, than the mere total value of an inventory. Thus, Stapp shows that the perceived affluence of African Americans in Boston in the decades before the Civil War was tenuous at best. Probate records have also proven particularly effective when used in combination with archaeological excavation: “[...N]either, by itself, gives a complete picture of material life in the eighteenth century,” yet the combination of both yields a wealth of information for historians of material culture.303 Archaeologists have shown, for example, that expendable items of small value such as earthenware were underregistered in probate inventories. Additionally, probate records can help archaeologists in the preparation of their work, as they allow not only the reconstruction of the size and location of the buildings on a farmstead and of its inhabitants, but also help in establishing the timeframe during 300 301 302 303

Gloria L. Main, Tobacco Colony: Life in Early Maryland, 1650-1720 (Princeton, NJ: Princeton University Press, 1982) 52-54. Ibid., 94f, in particular Table II.19. Carol Buchalter Stapp, Afro-Americans in Antebellum Boston: An Analysis of Probate Records (New York: Garland, 1993). John Bedell, “Archaeology and Probate Inventories in the Study of Eighteenth-Century Life,” Journal of Interdisciplinary History 31, no. 2 (2000): 245.

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which it was being used and farmed.304 It is thus often in combination with other ways of inquiry that probate records develop their particular value for historical research. Probate records are a very versatile source. However, some important limitations do apply. First, in most cases it is very difficult to tell who entered the probate process and who did not.305 Women were almost generally excluded, as – under the legal doctrine of coverture – they could not own property as long as they were married and hence had no property to be probated. Furthermore, African and Native Americans rarely entered the process, causing them to be underrepresented in probate documents.306 These limitations are important to consider before making far-reaching claims based upon probate records which are, in Gloria Main’s verdict, “rarely susceptible of direct, unqualified use.”307 Especially in statistical uses, where small samples are used to make inferences about an entire population, it is imperative that the sample be representative of the population at large. Thus, as the probated population is not an unbiased cross-section of the entire population, it is very difficult to achieve valid statements about the latter. Nonetheless, scholars have obtained results from probate records that are, for all intents and purposes, valid and valuable for the living population at large even though only samples of decedents were used. Those results were largely 304

305

306 307

Ibid. For further examples of such symbiosis of archaeology and probate history see Joanne Bowen, “Probate Inventories: An Evaluation from the Perspective of Zooarchaeology and Agricultural History at the Mott Farm,” Historical Archaeology 9 (1975); David Colin Crass, Bruce R. Penner, and Tammy R. Forehand, “Gentility and Material Culture on Carolina Frontier,” Historical Archaeology 33, no. 3 (1999); Mark D. Groover, “Evidence for Folkways and Cultural Exchange in the 18th-Century South Carolina Backcountry,” Historical Archaeology 28, no. 1 (1994); Mark D. Groover, Of Mindset and Material Culture : An Archaeological View of Continuity and Change in the 18th Century South Carolina Backcountry (Columbia, SC: South Carolina Institute of Archaeology and Anthropology University of South Carolina, 1992). Formerly, most scholars maintained that participation in the probate process was unsystematic and drew from the higher strata of society: Poorer decedents, they argued, did not have much property to dispose of, hence they tended to circumvent the costly and complex process. Since then, Holly Izard has made a powerful argument that the process was indeed systematic and included all those who fell in one of five categories, i.e. they had either left a will, left real property, had underage heirs, either owed or were owed money. Holly V. Izard, “Random or Systematic: An Evaluation of the Probate Process,” Winterthur Portfolio 32, no. 2-3 (1997): 142. The problems presented by incomplete or seemingly complete records are also addressed in Harold B. Gill and George M. Curtis, “Virginia's Colonial Probate Policies and the Precondictions for Economic History,” Virginia Magazine of History and Biography 87, no. 1 (1979); Anna L. Hawley, “The Meaning of Absence: Household Inventories in Surry County, Virginia, 1690-1715,” Dublin Seminar for New England Folklife Annual Proceedings 12 (1987); Kenneth A. Lockridge, “A Communication,” William and Mary Quarterly 25 (1968). Izard, “Random or Systematic,” 163f. Main, “Probate Records as a Source for Early American History,” 95.

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achieved by establishing complex algorithms which compensated for biases inherent in the probate records to make the samples representative for the population at large. For American Colonial Wealth and Wealth of a Nation to Be, Alice Jones had to contend with the numerous difficulties and vagaries that come with probate inventories. In a first step, she had to ensure that her sample was an unbiased representation of the entire decedent population of the colonies in or around 1774. For that purpose, she drew a random sample of 21 counties, in which each county’s chance of being drawn was proportional to its expected share of the universe of probate cases.308 After a pilot study, Jones arrived at a number of between 25 and 100 inventories, which would be necessary per county to obtain reliable results and which were then drawn randomly.309 At the end of that step, she ended up with 919 inventories which, statistically, represented the entirety of all probated decedents of 1774. Yet the sample thus obtained had to be weighted for the uneven proportion of inventories and wealthholders in the different states, the fact that the decedents are on average older than the general population, the fact that not all estates are probated, as well as for the uneven regional distribution of the drawn inventories.310 Furthermore, many gaps in the inventories had to be filled with outside sources. Vital information such as age of the decedents and their occupation are rarely included in the inventories, nor are debts and, particularly in the South, real property.311 All of those, however, were necessary factors in making the corrections which liken the decedents to the living, an imperative step in achieving Jones’ primary objective: An estimate of the wealth owned on the eve of the American Revolution. While Alice Jones has presented the most comprehensive study overall, others have made important contributions to the correction of biases inherent in probate records, offering important assistance on the way to generalization of results obtained by sampling probate records. Gloria Main introduced some of the methods Jones applied, namely using outside information gleaned from tax lists and vital records.312 Daniel Scott Smith has conducted research on the bias of probate records in Hingham, Massachusetts, for which a complete death 308

309

310 311 312

Jones, American Colonial Wealth III:1831, 33. In some cases, Jones used clusters of counties to obtain some ‘critical mass’ of inventories. For New York, the entire colony was used as a sampling unit. Ibid., III:1815, 19. The expected share or proxy for the number of probate inventories was necessary because the exact number of inventories “could not be determined in advance except at prohibitive cost.” The population size of the counties served as that proxy. Ibid., 1830, 33. Ibid., 1844f. Peter Lindert has argued against random sampling in some cases. Peter H. Lindert, “An Algorithm for Probate Sampling,” Journal of Interdisciplinary History 11, no. 4 (1981): 655ff. Jones, American Colonial Wealth III:1865-71. Jones, Wealth of a Nation to Be xxvii-xxxiv. Gloria L. Main, “The Correction of Biases in Colonial American Probate Records,” Historical Methods Newsletter 8, no. 1 (1974).

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register exists for the years 1718 through 1786.313 These records show, Smith argued, that age was not the central determining factor in whether an estate was inventoried or not, but that wealth was: The wealthier a decedent, the more likely the estate was to enter the probate process.314 Kevin Sweeney comes to very much the same conclusions for Wethersfield, Connecticut, but suggests that the proportion of inventoried estates declined over time, making age correction more significant the later in the colonial period one conducts research.315

3.2. Probate Records in Massachusetts and South Carolina With any category of historical sources, it is necessary to know the circumstances under which the records originated in order to be able to use them successfully. This is especially true with probate records as the logic under which that category of sources has arisen is not explicit in the sources themselves and the inclusiveness or completeness of the records can only be judged when their origins are well known.316 Accordingly, it is necessary to study the origins and process of probate in the American colonies and, for the purpose of this study, particularly in Massachusetts and South Carolina. The probate process originated in the necessity of ascertaining the orderly transfer of property upon the death of its owner.317 The term ‘probate’ has its roots in the Latin for ‘proving’ the authenticity of a decedent’s will, but the jurisdiction of probate courts encompassed the administration of estates in cases of intestacy, too.318 In England, probate matters had largely been under the jurisdiction of ecclesiastical courts – often called courts of ordinary after the Latin term for the local bishop who presided –, but common law courts and chancery also had a share in probate matters.319 The English system of administering 313

314 315 316 317

318 319

Daniel Scott Smith, “Underregistration and Bias in Probate Records: An Analysis of Data from Eighteenth-Century Hingham, Massachusetts,” William and Mary Quarterly 32, no. 1 (1975): 102. Ibid., 105. Kevin M. Sweeney, “Using Tax Lists to Detect Biases in Probate Inventories,” Dublin Seminar for New England Folklife Annual Proceedings 12 (1987). Gill and Curtis, “Virginia's Colonial Probate Policies and the Precondictions for Economic History.” David Narrett has argued that wills had the further purpose of preparing the testator for his death. David E. Narrett, “Preparation for Death and Provision for the Living: Notes on New York Wills (1665-1760),” New York History 57, no. 4 (1976). Richard Burn, Ecclesiastical Law, 2 vols. (London: Printed by H. Woodfall and W. Strahan and sold by A. Millar, 1763) II:629ff. Lewis M. Simes and Paul E. Basye, “The Organization of the Probate Court in America, Part 1,” Michigan Law Review 42 (1944): 967-74. A major factor in determining where matters were to be decided lay in the limitation of ecclesiastical courts to wills containing personal property. Real estate descended directly to the legatee without any necessity for

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probate was thus very complex, at times making it necessary to bring action in a variety of courts to settle a single matter. It is very likely that the intricacy of this process contributed to the clamor for reforms by the first half of the nineteenth century.320 When English emigrants installed their settlements in North America, they took with them the institution of probate. However, they did not install ecclesiastical courts, but mostly delegated these matters to civil authorities instead.321 The early charters of both Plymouth Plantation and Massachusetts Bay were silent on how probate was to be administered, but the legislatures determined that the governor and his council should prove wills and direct administrations.322 Furthermore, Massachusetts Bay directed in 1639 that records should be kept of all wills, administrations and inventories. Only little later, in 1649, Massachusetts Bay established county court jurisdiction in all probate matters, a step that Plymouth took in 1685.323 With the establishment of the Dominion of New England these regulations fell into disuse and when Massachusetts was created in 1691, its charter provided explicitly that the governor and council should determine probate.324 The governor, however, decided to delegate his function as ordinary to judges of probate in every county, thus setting up the structure of probate administration under which the system operated throughout the eighteenth century.325 Indeed, the Revolution changed the system only marginally: The state Constitution of 1780 continued the probate judges and in 1784 the legislature created courts of probate in every county, at the same time taking away the appeals function from the governor and vesting it in the Supreme Judicial Court, which would then sit in its function as Supreme Court of Probate.326

320 321 322

323 324 325

326

probate and hence, the ecclesiastical courts being excluded from the procedure, common law and chancery were the courts in which to bring suits. Burn, Ecclesiastical Law II:607; Simes and Basye, “Organization of the Probate Court 1,” 968. Ibid., 967-74. Erwin C. Surrency, “The Courts in the American Colonies, Part 2,” American Journal of Legal History 11 (1967): 362f and Burn, Ecclesiastical Law II:607 note this fact explicitly. Thomas E. Atkinson, “The Development of the Massachusetts Probate System,” Michigan Law Review 42 (1943): 426f, 32f; Surrency, “Courts in the American Colonies 2,” 362f. Atkinson, “Massachusetts Probate System,” 431, 38f; William T. Davis, History of the Judiciary of Massachusetts (New York: Da Capo Press, 1974) 39. Ibid., 75, 162. Massachusetts Charter of 1691, in: Thorpe, Federal and State Constitutions, III:1881. Atkinson, “Massachusetts Probate System,” 441. Thereafter, governor and council only heard appeals from their county substitutes. Catherine S. Menand, “A 'Magistracy Fit and Necessary': A Guide to the Massachusetts Court System,” in Law in Colonial Massachusetts, 1630-1800., ed. the Colonial Society of Massachusetts (Boston, MA: Colonial Society of Massachusetts; Distributed by the University Press of Virginia, 1984), 543. Atkinson, “Massachusetts Probate System,” 447.

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South Carolina organized its probate administration differently in that jurisdiction remained centralized throughout most of the colonial period, a 1721 attempt to vest county courts with “full power to determine the right of administration of the estates of persons dying intestate […] and also all disputes concerning wills and executorships, in as full and ample manner as the same have or might have been heretofore determined by any Governor, or Governor and Council” notwithstanding.327 Another attempt at decentralizing the administration of probate failed in 1778. In the new constitution of that year, the legislature had provided that an ordinary should be appointed in every district of the state. Yet, neither during the colonial period, nor in the early years of independence did any of these decentralizations take hold. The problem probably lay in the special role Charleston played in the social and economic life of the province, as the laws granting powers to county courts always retained an extended jurisdiction for the Charleston courts in matters from other counties and districts: Almost immediately after the County Court Act of 1721, another act reinstated the powers of the Charleston court over the entire province; the constitution of 1778 provided that “the present ordinary in Charleston shall continue to exercise that office” until appointments could be made, which were never made for some districts; and the County Court Act of 1785 even contained a suspending clause, keeping the lowcountry districts under Charleston’s jurisdiction until a majority of the population would petition for local courts, which never seems to have been the case.328 For the reasons described above, the probate process in South Carolina remained strongly focused upon Charleston during much of the eighteenth century. Only after the 1785 act did local probate courts come into existence in the backcountry. It is very likely, therefore, that the probate records of South Carolina for that timeframe also exhibit a certain – probably strong – bias towards the lowcountry. As early as 1721, the authors of that year’s County Court Act believed that it hath been found a great charge and burthen to the several inhabitants of this Province, to be obliged to repair from all parts of the country to one general court at Charlestown, for the trial of all causes [...]; and by reason of the parties and witnesses living at such great distances, divers suits have been delayed and protracted, several persons

327 328

An Act for Establishing County and Precinct Courts (#473, 1721), in: StaL VII:172. Quoted in Simes and Basye, “Organization of the Probate Court 1,” 981. An Act for Authorizing the General Court in Charles City and Port, to Exercise the Several Powers and Privileges allowed to the County and Precinct Courts in this Province [...] (#449, 1722), in: StaL VII:176; Constitution of SC 1778, Art. XXIV, in: Thorpe, Federal and State Constitutions, VI:3254; An Act for Establishing County Courts, and for Regulating the Proceedings Therein (#1281, 1785), in: StaL VII:238.

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discouraged from seeking and recovering their just rights, and his Majesty’s peace less orderly kept.329

Accordingly, it seems more than likely that probate cases from the districts at a greater distance from Charleston, hence especially the backcountry, would be less commonly included in the probate process. Since mostly no localities other than the seat of the court are included in the records, it is almost impossible to reconstruct exactly the extent of that bias, yet it must be kept in mind that such a bias likely existed. The course of probate depended very much upon whether a decedent died testate. Judge John Grimké described the process of probate in South Carolina in his standard The Duty of Executors and Administrators. It is perhaps the most detailed account of how the probate system worked, particularly in South Carolina. It also makes clear that South Carolina followed English precedent rather closely. These next paragraphs will be devoted to tracing the main features of the system there, and then to attempting to underline the differences that existed in Massachusetts. If the decedent had made a will containing personal property, it was incumbent upon the executor named in the document to exhibit the will to the relevant probate officer to have it proved, “for this will is no will until it has received a sanction, or an allowance of it in the spiritual court.”330 Usually, stated Grimké, wills should be proved within four months after the testator’s death and before the proving of a will the powers of executors were severely limited.331 Two ways obtained of proving a will. In the vulgar, or common form, a will could be proved by the witnesses presented by the executor or even by the executor’s oath alone, while the form of law, or solemn form required that notice be given to any interested parties to enable them to be present. The two forms mainly differed in their vulnerability to reversal in later proceedings. The common form, if contested at a later time, might require the executor to reproduce his witnesses and prove the will anew, while in the solemn form, “the executor is not to be compelled to prove the same any more; and although all the wit-

329 330

331

An Act for Establishing County and Precinct Courts (#473, 1721), in: StaL VII:166. John Fauchereaud Grimké, The Duty of Executors and Administrators (New York: Printed by T. and J. Swords, 1797 (=Evans 32214)) 162. It is interesting to note that despite the absence of spiritual courts in South Carolina, Grimké repeats the English provision verbatim. Compare Burn, Ecclesiastical Law II:608. In cases where real property was devised, probate was not necessary in Britain or South Carolina. Ibid., II:607; Grimké, Duty of Executors 162; Simes and Basye, “Organization of the Probate Court 1,” 971. Grimké, Duty of Executors 168f.

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nesses afterwards be dead, the testament doth still retain its full force.”332 For this reason, contested wills were always to be proved in the form of law.333 At the time of proving the will, the executor was supposed to take an oath to the faithful execution of the testator’s last will: I do solemnly swear, that this writing contains the true last will of the within named A B, deceased, so far as I know or believe; and that I will well and truly execute the same, by paying, first the debts, and then the legacies contained in the said will, as far his goods and chattels will thereunto extend, and the law charge me; and that I will make a true and perfect inventory of all such goods and chattels. So help me God.334

The probate officer would then issue a certified copy of the will to the executor and record the process in his record book, thus concluding the process of proving the will.335 Interestingly, the executor was not required to post a bond in support of his oath, the logic being that “the testator hath thought him able and qualified.”336 In cases where the decedent did not leave a will, i.e. died intestate, as well as in cases where all the executors of a will refused, the process of settling the estate is more precisely known as administration, even though in general usage both administration and probate proper are often subsumed under the collective term ‘probate.’337 The procedure of administration is quite different at first from that of probate of a will. Most importantly, while the executor had some limited rights even before probate had been granted, the administrator of an estate was entirely dependent on the letters of administration issued by the relevant probate officer.338 Administration was generally to be granted to the “next and most lawful friends” of the deceased, that is, first to the surviving spouse, then to the children, parents and so on.339 Like the executor, administrators were required to swear an oath to the faithful execution of their office, which also included the inventory as an important charge: 332 333 334 335 336 337

338 339

Ibid., 170-73, Quotation at 73. Ibid., 173. Ibid., 174f. Ibid., 177. Ibid., 175. When all executors named in a will either refused the charge, were dead or otherwise incapacitated, probate officers could grant “administration with the will annexed.” In this case, the administrator, though appointed by the court, was bound by the testament of the deceased. For the procedure followed in such cases, see Ibid., 168. On the origins, necessity and importance of naming an executor in a will see George L. Haskins, “The Beginnings of Partible Inheritance in the American Colonies,” in Essays in the History of Early American Law, ed. David H. Flaherty (Chapel Hill, NC: University of North Carolina Press, 1969), 214. Grimké, Duty of Executors 193. Ibid., 187.

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I do solemnly swear or affirm, that A B, deceased, died without any will, as far as I know or believe; and that I will well and truly administer all and singular the goods, chattels, rights and credits of the said deceased, and pay all his just debts, as far as the same will extend, and the law requires me, and that I will make a true and perfect inventory of all said goods and chattels, rights and credits, and return a just account thereof when thereunto required: So help me God.340

The procedure differs from proving wills in so far that, in addition to an oath, financial sureties were required in the case of administration. Administrators had to post a bond “in a sum equal to the full value of the estate”:341 The fact that administrators were to be the decedent’s “next and most lawful friends” does not seem to have carried as great a weight as the personal choice of the testator, who got by without posting any bonds. Once qualification had been achieved – probate granted or letters of administration issued – the procedure was again very similar. By their respective oaths, both executors and administrators were required to “make a true and perfect inventory” of the goods under their charge. The oaths, however, reflect the difference between the offices: The executor only swore to make an inventory of the “goods and chattels,” while the administrator was charged with the “goods and chattels, rights and credits” of the deceased. Thus, an administrator would have to bring in outstanding credits of the decedent, while the executor seemingly was not required to do so. Furthermore, his oath did not require an executor to produce an account in court.342 It seems sensible to assume that these differences stem from the fact that the executor was a testator’s personal choice, most likely a trusted friend, while that was not necessarily the case with the administrator who owed his appointment solely to the probate officer. The inventory was to comprise all the possessions that did not qualify as freehold. “All the testator’s cattle, [...] all poultry, houshold [sic] stuff, money, plate, jewels, corn, hay, wood severed from the ground and such like moveables” were to be included, as well as personal chattels and debts owing to the deceased.343 Slaves were also to be inventoried, “as the act of 1740 declares, that they shall be deemed, held, taken, reputed and adjudged in law, to be chattels personal, in the hands of their owners and possessors [...] to all intents,

340 341 342

343

Ibid., 193. Ibid., 194. Ibid., 201. Grimké seems to contradict himself here. On page 198, he states that “the act of 1745 is much more particular, as it requires the executor or administrator to return a full and perfect inventory of all and singular the rights and credits of the said testator or intestate” Ibid., 198. Ibid., 200.

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constructions and purposes whatsoever.”344 The inventory specifically excluded such possessions “that are affixed to the tenement, and are made parcel of the freehold,” e.g. windows of the house, as well as the wife’s portion of her husband’s estate.345 The law further provided that [t]he inventory shall be made in the presence of some credible persons, who shall completely understand the value of the deceased’s goods: for it is not sufficient to make an inventory, unless the goods therein contained be particularly valued and appraised by some honest and skillful persons, to be the just value thereof in their judgements and consciences; that is to say, at such price as the same may be sold for at that time.346

Once the inventory had been made, the executors and administrators were supposed to pay debts, legacies and see to the equitable distribution of the estates.347 Finally, completing the process, administrators and executors would present their accounts to the probate officer having jurisdiction in their case, even repeatedly if the case so required.348 The same officer would also decide on the completion of the charge of execution or administration and close the case: “[A]nd the executor or administrator ought to be acquitted and discharged from further molestation and suits; neither ought they to be called by the ordinary to any farther account.”349 It is very difficult to say whether the Massachusetts system was similarly organized, as the situation of probate administration is less well documented there. A work similar to that of John Grimké, Samuel Freeman’s Probate Auxiliary published in 1793, was limited in its scope to the Commonwealth of Massachusetts and hence included only such provisions that were passed after Independence.350 Accordingly, it does not offer explicit information on the colonial period. It can be assumed, however, that at least the very basic features were similar, as both systems derived from the same English antecedents. An important difference lies in what was to be listed in inventories. Real property, i.e. lands, were included in Massachusetts inventories. In South Carolina, as lands went directly to the heirs and thus were not under the responsibility of the executors, 344 345 346 347 348 349 350

Ibid., 200f, Quotation at 01. Ibid., 203f, 08, Quotation at 03. Ibid., 211. Ibid., 218-305. Ibid., 307-09. Ibid., 309. Samuel Freeman, The Probate Auxiliary, or, a Director and Assistant to Probate Courts, Executors, Adminstrators and Guardians : Being the Laws of the Commonwealth of Massachusetts, Respecting the Estates of Testators, Intestates and Wards : Carefully Collected : Together with a Comprehensive Alphabetical Index to the Same : To Which Are Added, a Variety of Forms (Portland (Massachusetts): Printed by Benjamin Titcomb Jun., 1793 (=Evans 25511)).

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they were excluded. This difference is probably due to the existence of partible inheritance in Massachusetts: Realty and personalty were lumped together and appraised together in cases of intestacy.351 Furthermore, executors and administrators had a less autonomous position in Massachusetts than in South Carolina. For example, executors and administrators were required, contrary to the practice that prevailed in South Carolina, to exhibit inventories and accounts to the probate courts.352 Thus, they were more stringently required to account for the execution of their respective trusts. This fact needs to be borne in mind, as it has an influence upon how well the available, recorded inventories reflect the probate process at large: A completed executorship in South Carolina did not necessarily require an inventory to be filed. Thus, it seems sensible to assume that the recorded inventories there underregister the total number of cases handled in that province’s probate courts.

3.3. Project Design, Rationale and Data Collection It was in the light of the above studies that the strategy for this project was devised. Originally, in the very early conceptual stages, I had intended to sample all years of the eighteenth century in Massachusetts and South Carolina, but it became clear that the “glorious profusion” of the probate inventories quickly becomes an embarras de richesse:353 One is faced with thousands upon thousands of such inventories. Thus, I decided to analyze a number of years instead of the entire century, finding the years between 1732 and 1791 particularly suitable and logical at the same time. 1791 was easily determined in light of the fact that the Bill of Rights, including the second Amendment, was ratified in that year. The starting point was much more difficult to define. South Carolina became a royal colony in 1730 after a period of upheaval and administrative chaos, suggesting that year as a significant caesura in the colony’s history.354 In the end, however, the determining factor was the relative scarcity of probate records before that time. Only a handful of inventories have survived from the proprietary period and those for the interregnum number around 400.355 Only with the onset of the new record series of the Recorded Instruments of the Secretary of State in 1732 is there a solid base of sources available. With the timeframe 1732 to 1791 established, I decided to refrain from using equidistant intervals but rather to pick some years specifically. Particularly, I wanted to see whether the colonial 351 352 353 354 355

Haskins, “The Beginnings of Partible Inheritance,” 215. Freeman, The Probate Auxiliary 68-70. Main, “Probate Records as a Source for Early American History,” 89. It is actually quite difficult to establish when exactly South Carolina became a royal colony. See Chapter 2 for this issue. Charles H. Lesser, South Carolina Begins: The Records of a Proprietary Colony, 1663-1721. (Columbia, SC: South Carolina Division of Archives and History, 1995).

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wars of the period had a visible impact upon the amount of firearms listed in inventories. In addition, I chose a small ‘control group’ early in my timeframe by random selection.356 I handpicked the years 1752, 1759, 1765 and 1771, 1779, and 1786 to investigate the situation for the French and Indian and Revolutionary Wars, respectively, the longest and most destructive wars on the American continent during the eighteenth century. The random selection process of four more years from the first decade of my timeframe yielded the years 1735, 1739, 1740 and 1743.357 For these ten years, I wanted to analyze the probate inventories of Massachusetts and South Carolina for the presence or absence of firearms. Additionally, I wanted to be able not only to make inferences about the levels of arms ownership in the colonies and states in general, but, if possible, add a geographic dimension: Did, for example, inventories on the ‘frontier’ show more guns than those of Boston? Or did South Carolina inventories in areas with many slaves have a greater occurrence of firearms than those where slavery was less prevalent? As inventories frequently do not give the name of the place where the decedent lived, the counties were the only category available as a geographic determinant. In South Carolina, where probate was administered in Charleston for the entire province during most of the eighteenth century, no such determination was reliably possible for the years before 1785. The decision to undertake analysis by counties had important ramifications for the design of the sample. Statistically, the larger the universe of a sampling project, the smaller the sample can be relative to the universe. For Massachusetts, however, with eleven counties to be analyzed in ten years, we have 110 separate universes each of which needs to be dealt with separately. As these universes are mostly very small, a very great proportion of them needs to be examined in order to obtain reliable results. In the light of these necessities, I decided to drop the counties of Barnstable, Middlesex, Plymouth and Worcester.358 356

357

358

At a first glance, the term control group may not seem entirely fitting, as it does not cover the same time frame as the results to be ‘controlled.’ Yet, I believe that this little group will still serve to give some context as to the plausibility of the results for the handpicked years. In the years before 1752, when the Julian calender was still in force in Britain and her colonies, and dates on inventories followed the convention that the year began on 25 March, I have reckoned according to the Gregorian calender. Thus, 1 January through 24 March 1734 in the Old Style (frequently noted in the documents as 1734/35) I have counted as belonging to 1735, and accordingly for other years. For the details of the English calendar see Hermann Grotefend, Taschenbuch Der Zeitrechnung Des Deutschen Mittelalters Und Der Neuzeit, 13. ed. (Hannover: Hahn, 1991) especially 13. Barnstable and Plymouth counties represent the south-eastern coastal counties which are, in my opinion, sufficiently represented by Bristol, Dukes, and Nantucket counties. Middlesex contained densely settled areas near Boston and rural areas further inland, being thus very similar to Essex and Suffolk counties. Worcester is a landlocked county

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The next step was to establish a firm basis for the sampling process, i.e. to determine the statistical universe for each of the remaining counties for each year. For that purpose, I compiled a list of the inventories taken or registered in the years under consideration in each of the counties in Massachusetts.359 In some counties, the docket books were arranged chronologically, so that it was relatively easy to obtain all the inventories for a specific year. In most, however, docket books were arranged alphabetically and accordingly were unsuitable to bring together inventories for a particular time period. In these cases, I perused the actual record books. However, this act of tabulating data is often a very time-consuming affair. William Aydelotte has stated the fact very succinctly: “Also the task of correctly recording so great a mass of data is more arduous than is likely to be believed by anyone who has not tried it.”360 The data thus obtained I then entered into a database for easier handling: At that time, the combined universes for ten years and seven counties numbered 2772 inventories. As probate was administered centrally in South Carolina, I only had to contend with a single universe per year, while at the same time losing the geographical dimension that is available in Massachusetts: For that state, it will be largely impossible to say whether there is a difference in gun ownership between the Tidewater, the Piedmont and the upcountry. Only for the last of my years were records for the backcountry available. In 1785, South Carolina erected county and district courts and lodged the responsibility for the administration of probate in these more localized institutions.361 However, the vagaries of South Carolina’s history render analysis very difficult: During the Civil War, many of the colonial records of the state were destroyed when Columbia went up in flames at the hand of Union troops. Thus, only the probate records of Charleston District and Camden District were available for 1786. For three others, Abbeville County, Barnwell District and Newberry District, I have substituted the still very sparse records of 1787 to get at least some backcountry material. Even so, I only found a total of 142 inventories for the years 1786 and 1787 for the entire state: Charleston District had the most with 104, Camden District had 30, while Abbeville, Barnwell and Newberry had three, three and

359

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similar in that respect to Hampshire and Berkshire. Furthermore, the records for both Worcester and Middlesex were in very bad shape, both in their physical state and their internal arrangement, which would have made any extended work with them extremely troublesome. See Appendix II for maps of Massachusetts and South Carolina. A problem appeared at that time with the overlap of the Gregorian year and the English year from 1 January to 24 March and the consecutive years of 1739 and 1740 in my sample. As it was often difficult to determine a single date for an inventory – it might have been compiled in December of 1739 and registered in January 1739/40 – the size of the universes for 1739 in generally larger than for 1740. Aydelotte, “Quantification in History,” 12. See also Eric H. Monkkonen, “The Challenge of Quantitative History,” Historical Methods 17, no. 3 (1984): 90. See footnote 328 above.

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two, respectively. Accordingly, I must say clearly that the reliability of the backcountry data is seriously compromised by the scarcity, even lack of records. For the other years, gathering inventories to establish the statistical universe was not overly complicated. For the years between 1732 and 1785, the inventories were collected in the Recorded Instruments of the Secretary of the Colony. The volume covering 1732 to 1736 was in the Miscellaneous Records of that series, while the rest were in a dedicated series of Inventory Books. Furthermore, the Works Progress Administration during the New Deal produced typescript transcripts of many inventories. Those transcripts were conducted under professional direction, proofread and even distributed to the courts which held the original records for reference and use there. Some comparisons between the original record books and the transcripts confirmed the impression that the quality was generally very good and the transcripts thus reliable. Also, many of the original volumes have deteriorated considerably since the 1930s, often making them all but illegible, a fact compounded by the very poor quality of much of the early microfilm of the records. Hence, whenever possible, I worked with the WPA transcripts. In collecting inventories, I further discovered that no inventories existed for 1779 and substituted those of 1780. I again compiled a list of all inventories either written or recorded in the years under investigation. At the end of this step, I had collected a total of 889 inventories for South Carolina’s 14 universes featured in my study. The inventories from Massachusetts and South Carolina I entered into a database in Microsoft Access, completing them with necessary identifying information. For the Massachusetts counties of Dukes and Nantucket, I did not enter the universes into the database, because I had compiled them separately in Microsoft Excel spreadsheets, from which I drew the samples for these two counties. The sampled cases, however, have been entered into the master table in Access. For every record, I had Access automatically assign a record ID number and included the decedent’s last name, first name, sex, additional name information (such as ‘Doctor’ or ‘Captain’), a geographical identifier, the date on the inventory, an ID for the archival location of the record, as well as categories for general notes and particularly important information. After the various samples were drawn, I entered further information on the inventories drawn into the samples. At that time, I included information on the amount of firearms enumerated in an inventory, the number of slaves enumerated, as well as text categories for both guns and slaves for further information. I also entered the value of the inventory whenever it was summed up, as well as an identifier for the currency in which the valuation had taken place, whenever such could be determined.362 362

The entire data set upon which this study is based has been placed in the Data Archive for the Social Sciences in Cologne.

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Sample Rationale and Design Sampling and statistical analysis have become accepted techniques in historical scholarship. In order to reach valid conclusions and make valid inferences, it is absolutely necessary to adhere to the rules of statistics. Not only is it necessary to document carefully the individual steps of an inquiry for the sake of clarity, careful sample design is also of great moment. As the universes from which the samples are drawn are known, a cause for considerable uncertainty in many studies – particularly such using historical or otherwise archival records where it is frequently impossible to ascertain the universe precisely beforehand – is not present here.363 For this study, I drew my samples of the inventoried population in the various counties and districts to reflect an acceptable error of ± 5% and a confidence level of 95%. As I had very little idea what occurrence of guns in inventories to expect, I decided to err on the side of caution and assume an equal distribution of 50% to 50%. That way, I drew the sample for the most difficult situation and will be on the safe side in any more favorable setting. With these parameters I used Stats, a software program specifically designed to make such statistical calculations, to calculate my own sample sizes. In cases where the universe was smaller than 30 cases, an important threshold in statistics, I did not draw samples but worked with all cases instead.364 Also, I amalgamated all 1786/87 South Carolina inventories outside Charleston District into one backcountry category. Thus, I obtained the sample sizes shown in Appendix III.365

3.4. Analysis and Results The great advantage of statistical analysis – together with the use of analytical software – is that it helps digest the great amounts of information collected so painstakingly before and makes it possible to clarify its general characteristics: “Since it brings the whole of the evidence, on the point it covers, into intelligible focus, the general character of the findings can be more readily perceived and relationships and differences emerge that could not so easily have been

363 364

365

On that problem see Jones, American Colonial Wealth III:1830 and above. With fewer than 30 cases, analysis often becomes problematic, for example in contingency tables where very few cases would leave some fields with too few values to useful in interpretation. In five single cases (0.136% of all 3664 cases of the universe) errors in entering the year had occurred in the compilation of the universes, leading to incorrect universe counts in South Carolina 1735, South Carolina 1739, South Carolina 1743, Suffolk 1752 and Bristol 1779. In these cases (marked ‘!’ in the table in Appendix III) the reliability of the samples is slightly smaller. Appendix III.

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observed without this reduction of the data.”366 Even so, however, the results of quantitative analysis need to be presented intelligibly, as numbers rarely speak for themselves. “For the initiated as well as the uninitiated, quantitative history is not bedtime reading,” Eric Monkkonen has aptly observed.367 Data and graphs which typically sum up research in quantitative history often are a not helpful for those not used to their interpretation. Thus, even more than with traditional sources, clear exposition is indispensable and great care must be taken not to hide valuable results behind overly technical jargon. Furthermore, it is imperative to keep in mind the premises of the investigation. All numbers presented mark lower bounds of gun ownership in the decedent group, as we can have no idea of how many guns were not listed in the inventories. The data set is representative of the decedent set, but not necessarily of the population at large. Furthermore, while I do present the precise numbers SPSS delivers, these should rather be taken as generally indicative – too much faith in precision may be treacherous here.368 In a first step of analysis, I looked at the data set in its entirety. The analysis here very strongly suggests that guns were not a rare commodity in either Massachusetts or South Carolina in the eighteenth century. Of all valid cases, 42.2% listed guns in their inventories. 51.8% did not contain firearms, while the readings were inconclusive in 6%.369 Always keeping in mind that these numbers of guns listed in decedents’ inventories can be just a lower bound of the number of guns owned by that group, that number strikes me as rather considerable. It points away from the very low percentages stated by Michael Bellesiles in Arming America and more in the direction claimed by some of his critics.370

366 367 368 369

370

Aydelotte, “Quantification in History,” 8. Monkkonen, “Challenge of Quantitative History,” 90. Philip Greven has made that important point, too. See the quotation at the head of this chapter. Greven, Four Generations 6f. By “valid” cases I mean those that did not have any missing values. Missing values might be such as were illegible, partially illegible or those inventories that could not be located. This was the case in some of those Suffolk, Massachusetts, inventories, the list of which had been compiled from the docket books. Thus, there was an entry in the docket book, but no inventory where it was supposed to be in the record books. Such cases are excluded from the tabulation of percentages. I labeled the categories “Not clear” when an entry in an inventory could mean a firearm but not clearly so. For example, occasionally, inventories enumerated “gold pistols,” which might either be gold-ornamented pistols or a corrupted spelling of “pistole,” a Spanish gold coin that was in wide circulation in North America. In his now infamous Table 1, Michael Bellesiles stated that he had found guns in no more than 14.7% of inventories nationwide. Bellesiles, Arming America 445. His critics James Lindgren and Justin L. Heather concluded from various sources that the actual percentage was much higher. Lindgren and Heather, “Counting Guns in Early America.” See also Lindgren, “Fall from Grace.”

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However, considerable variations exist as to whose inventory listed how many arms and where. Judging from their inventories, women, for example, seem to have been much less likely to own guns. Of the 287 inventories in the data set belonging to female decedents, only 18 cases or 6.3% listed guns, while a large majority of 265 cases or 92.3% did not. Of the male inventories, 46% contained firearms.371 These results seem generally consistent with the widelyheld view of gender roles at the time. Military service, hunting and other outdoor activities were generally seen as belonging to a male role, while the domestic, female role did not require the possession of firearms. Furthermore, considerable geographic differences exist. Generally, gun ownership seems to have been much higher in South Carolina than in Massachusetts. In the southern state, guns appeared in 60.6% of the inventories in the sample, while Massachusetts only showed 36.5%. I assume that the reason here is twofold: On the one hand, the existence of a sizeable slave population that outnumbered free whites three to one at times probably made arms for defense against slave insurrections an important article for a slaveholder to have. On the other hand, there were external factors that may account for such a high occurrence of guns in South Carolina inventories. Most of South Carolina was threatened not only by its internal instability stemming from the prevalence of slavery, but also by the proximity of Spanish colonies in Florida and the often hostile relations with the surrounding indigenous population. Wars and skirmishes were a frequent phenomenon which figured prominently in the lives of South Carolinians. Often, these factors even compounded one another, like when the Spanish attempted to destabilize the British colony by inciting slave rebellions or when both sides clashed over their respective shares of the Indian Trade. The importance of geographical factors in determining how frequently guns were listed becomes even more clear when looking at the Massachusetts data county by county. There, the data shows an interesting west-east divide. The westernmost counties of Berkshire and Hampshire show a relatively high occurrence of arms in inventories, guns being listed in well over 50% in both. Further east, Bristol and Essex counties mark the midfield range at about 40% each, while the eastern counties of Suffolk and Dukes rank at about 30%. Even lower – and very conspicuously so – is Nantucket county, an island off the mainland coast, where just 20 percent of the inventories sampled contained guns. Like in South Carolina, these factors may have to do with the population’s threat assessments. Slavery was not a significant factor in Massachusetts at any time, but external threats were often considerable. The latter numbers seem to suggest that guns were a more frequent possession in the western counties than in the coastal ones. It seems reasonable to assume that in Nantucket county, an 371

Four cases were inconclusive.

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island off the Massachusetts coast, and Dukes county, which comprised some islands, too, the necessity to be prepared for military defense was considerably lower than in the mainland counties: Both European colonizers and the indigenous population, which posed threats to the security of settlements elsewhere, could not easily reach either Nantucket or most of Dukes county. Indeed, the citizens of Nantucket were at times freed from the requirements to be armed and prepared for militia service and required to pay a special tax in lieu thereof.372 Quite to the contrary, the western regions of the province or the state of Massachusetts were the stage for many military operations and local warfare between the Europeans and the Natives for most of the eighteenth century. It was here that the closest interaction between European settlers and Native inhabitants took place, interaction that was often not peaceful. The west of the state was an important staging area for any military operation along the Hudson River-Lake Champlain route to the French settlements in Canada. Thus, arms were at a premium among the population there. Temporal factors also should not be overlooked. For both states together, there seems to be no clear pattern of rise and fall of inventoried arms. Percentages mostly hover between 40 and about 50 percent of inventories enumerating any number of guns, peaking in 1759, at 54.7%. Towards the end of the timeframe, the numbers decline slightly. 1779 has only 30.8% of the cases listing guns and 1786 shows 37.4%. For Massachusetts and South Carolina individually, the temporal dimension shows interesting results. As observed above, the overall level of guns listed in inventories in Massachusetts was considerably lower than in South Carolina. Again, though, there is no clear pattern of rise and fall. Generally, the percentage of inventories listing any number of guns is between about 30 percent and 40 percent. 1759 shows the highest number at 50.8% and 1743 the lowest at 29.2%. Thus, the highest number was reached at the height of the French and Indian War, in which Massachusetts was very deeply involved and during which large portions of its male population served in the armed forces deployed against Native Americans and French Canada.373 That fact may be a reason for the 1759 peak. A second peak shows in the run-up to the Revolution in 1771, when 45% of the sampled Massachusetts inventories contained guns. In the case of South Carolina, the number of inventories listing guns is above 50% in all but 1779 and 1786. For the remaining years, the lowest value, 372

373

An Act Subjecting the Inhabitants of the Island of Nantucket to an Assessment towards the Charge of defending his Majesty’s Territories, in Lieu of their Personal Service (Ch. 23, 1759), in: Acts and Resolves, IV:195f. Fred Anderson, for example, reports that one third of the male population of Massachusetts between 16 and 19 served under arms in the French and Indian War and points out that some contemporaries even estimated that up to one third of the entire male population served in the war. Anderson, A People's Army 60.

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60.5%, occured in 1771, while the highest is at 77.8% in 1740. It arrived there after a considerable leap from 54.2% only a year earlier. These latter two numbers are particularly important, in that there seems to be a strong connection between the data and historical events that might be seen as corroborating the basic idea of this study, namely that the level of gun ownership can be measured with the use of probate inventories: 1739 was the year of the Stono Rebellion, one of the largest slave uprisings in the mainland colonies. When rumors of an uprising surfaced, the colonial legislature passed a law requiring all white males to carry arms to and into church on Sundays.374 When the rebellion actually occurred in September of 1739, a number of whites were killed before troops brutally suppressed it. Despite the quick end and bloody reprisal not only against the rebels but also against the slave population at large, it seems logical that in the ensuing climate of fear many whites would hoard large numbers of firearms in their homes, in order to defend themselves against their slaves. A further influence in keeping up the levels of gun ownership as represented in the inventories may have been the almost continuous state of war which engulfed the southern frontier. Between the 1740s and the 1760s that area rarely maintained peaceful conditions for any significant period of time. During those decades, South Carolina found itself at war with most of its neighbors at some time or another: With Spain in the War of Jenkins’ Ear and King George’s War, with France and Spain during the French and Indian War and with the Cherokee, the most populous of the neighboring Indian nations, after 1759. All of these altercations suggest that firearms may have been a good investment and precautionary measure for South Carolinians at the time. Another interesting variable may be the number of guns inventories contained as opposed to just looking whether or not an inventory listed guns. Again, the difference could hardly be starker between the two states. Massachusetts inventories very rarely contained more than one firearm, that being the case in only 9.6% of the inventories. By contrast, in South Carolina, 40.5% of all inventories there enumerated two or more guns. Particularly striking is the comparison for the category of 4 to 9 firearms, into which 14.5% of the South Carolina inventories fell, compared to a meagre 1.1% of the Massachusetts cases. Ten or more guns were listed in 1.4% of the South Carolina cases, but only in 0.1% in Massachusetts. It is interesting to note that the percentage of inventories containing more than one gun drops sharply in 1779, at which time only 5.5% list more than one gun, while the percentage of inventories with just a single firearm continues at about its normal level. Indeed, that drop is particularly pronounced in Massachusetts: After 11.6% of inventories listing more than one gun in 1771, that number is cut roughly in half to 4.7% in 1779. In South Carolina, while 374

An Act for the better Security of the Inhabitants of this Province against the Insurrections and other wicked Attempts of Negroes and other Slaves, in: SCG 18 August 1739, p. 1. The Act is not printed in the StaL.

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there is a decrease, it is neither as pronounced, from 36.5% in 1771 to 25% in 1779, nor should it be valued too strongly there, as the number of cases for which those figures are computed is very small: The data set shows only 12 cases for 1779.375 Geographical distribution shows some more details here. While the Massachusetts county of Suffolk had a comparatively small number of inventories showing any number of guns – 30.1% to be exact – it has the highest percentage of inventories listing more than one gun in Massachusetts: 13.1% of all Suffolk inventories show two guns or more. It is followed by Hampshire at 10.1%, Essex at 9.3% and Berkshire at 8.8%. In South Carolina, for the years through 1779, 44.6% of the inventories sampled show more than one gun. For the last year, 1786, the only one for which a geographical differentiation is possible for the South Carolina records, Charleston district shows 24.4% with two or more guns, while the combined backcountry has 15.6%.376 In my opinion, these figures, especially those for Suffolk county, suggest that guns were more than just a required piece of household equipment. In a place where comparatively few people seem to have bothered to keep guns in the first place, why would comparatively many of them have more than one gun? These numbers seem to reenforce the kind of questions that I originally asked in the early stages of this project, namely that guns may also have been status symbols. The later chapters will address this field more fully.

Slavery and Guns One of the most important and most interesting questions of this project was whether slavery had a discernible impact not only upon gun culture but upon the possession of guns in the colonial American population. Slavery was also very visible in the documents of the probate process. South Carolina, for example, considered slaves chattels and as such required them to be enumerated among the properties of a deceased slave owner.377 Thus, probate inventories should be a suitable source to get some insights on slavery and its relationship to gun ownership. 375

376

377

The South Carolina numbers coded 1779 were actually from 1780. In 1779, no inventories were registered in South Carolina. External circumstances seem to be at fault here. In the constitution of 1778, South Carolina had begun to reorganize its probate system at the same time that it was trying to stave off British incursions into the state. In the following years, a bloody war in the backcountry ensued, which probably disrupted the probate process, too. See Nadelhaft, The Disorders of War 51-61; Weir, Colonial South Carolina: A History 333-37. Not too much faith should be put in the backcountry numbers here, as there were only 38 cases extant for the years 1786 and 1787. Only Abbeville County, Barnwell District, Camden District and Newberry District had any records for this timeframe. Grimké, Duty of Executors 200f.

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Slaves were a common possession in the colonial American south, and even more so in South Carolina. As early as 1703, the Governor and Council reported to the Lords Proprietors population figures that enumerated 3800 whites and 3350 slaves. After 1708, they regularly reported a – mostly growing – majority of slaves in the colony: In that year 5500 slaves were counted as opposed to 4080 whites. In 1747, Governor Glen wrote to the Board of Trade that 25000 whites and 40000 “negroes” lived in the colony. By 1769, Lieutenant Governor Bull reported a majority of almost two to one, when 45000 whites and 80000 “negroes” lived in the colony according to his figures.378 The importance of slavery in South Carolina shows very clearly in the probate records. While only about 8% of the Massachusetts inventories contained slaves, almost 77% of those in South Carolina did so. Furthermore, the number of slaves decedents owned at the time of their death is revealing. In Massachusetts, of the 2219 inventories sampled there, only one (or, less than one tenth of one percent) listed 10 or more slaves. In South Carolina, 39% fell into that category. The category of five to nine slaves had another 12.9% in South Carolina and 0.5% in New England state. Thus, those individuals owning slaves in Massachusetts usually owned a single one, while that was more of an exception in South Carolina. The question, however, is not whether people owned slaves or guns, but whether there exists a statistical relationship between the two variables. That is, if people had slaves listed in their inventory, were they also more likely to have firearms enumerated than those who did not own slaves? Such correlations are often difficult or impossible to spot without the use of statistical indicators. With such statistical help, however, useful statements can be made.379 From the present set of data, it seems that there is a correlation between slaves and firearms being listed in inventories. If all cases are taken into account, the data suggests a weak correlation between the occurrence of slaves and the occurrence of firearms in inventories.380 Looking at the data state by state, it becomes visible that the connection is stronger in South Carolina than Massachusetts, where it is hardly possible to speak of any correlation at all.381 In

378 379

380 381

Greene and Harrington, American Population before the Federal Census of 1790 172-75. One such statistical indicator is Chi-Square, which is used to prove the existence of a statistical correlation. Dependent upon Chi-Square is Cramer’s V, which can be used to measure the intensity of the correlation. On these two indicators see Brian Everitt, The Cambridge Dictionary of Statistics (Cambridge/New York: Cambridge University Press, 1998) 60, 85. Chi-Square = 97.728, Significance Level p = 0.000, Cramer’s V = 0.189. I omitted “unclear” cases for this analysis. Chi-Square = 4.957, Significance Level p = 0.026, Cramer’s V = 0.049 for Massachusetts and Chi-Square 15.716, Significance Level p = 0.000, Cramer’s V = 0.151 for South Carolina. Again, “unclear” cases were omitted.

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that state, there even is a medium correlation between the number of slaves listed in an inventory and the number of guns enumerated.382

3.5. Conclusions: What Does This Data Tell Us? The above mass analysis of probate records has yielded some interesting results. Generally, it supports the long-held belief that guns were not a rarely-owned commodity in either colonial Massachusetts or South Carolina. And while not too much store should be set in the seeming precision of the numbers – as I have stated above, they should be taken to be generally indicative rather than precisely factual – , the data refutes statements to that effect made, for example, by Michael Bellesiles in Arming America. However, in order to avoid the pitfalls of over-generalization, a number of limitations should also be plainly stated. It is important to state that the analysis undertaken above is explicative only for the probated population in Massachusetts and South Carolina. This is an important limitation, as it is extremely difficult to say whether the probate population is a representative sample of the population at large. In many respects, that seems highly doubtful. Potential bias may stem from a number of sources. Probated decedents were generally older and hence had had more time to accumulate wealth – both monetary and in household goods – that would accordingly tend to be greater than the population average. Furthermore, the pattern of inclusion in and exclusion from the probate process cannot be determined conclusively. If it is impossible to say what segment of the population is represented by the probate population, it must of necessity be impossible to make inferences about the population at large based upon a sample of the probated population. A second important limitation lies in the fact that not all necessary variables could be used successfully. Perhaps the most significant deficiency in that respect is the lack of the economic component in the analysis. In many cases, I was unable to determine the total value of and the currency used in compiling the inventory. Without these indicators it is impossible to say whether perhaps the decedents’ wealth rather than the presence of slaves was the determining variable in whether guns were listed. Furthermore, it would have been highly interesting to see whether the frequency of guns was different among wealthy decedents than among poorer ones. Processes have been suggested to remedy both of the deficiencies mentioned above. However, their application has been limited to smaller numbers of inventories, more limited geographical areas and timeframes. Nonetheless, such 382

Chi-Square = 125.021, Significance Level p = 0.000, Cramer’s V = 0.217. For this contingency table I consolidated the categories “4-9 guns enumerated” and “10 or more guns enumerated” into one, as otherwise there would have been to many empty fields for meaningful statistical analysis.

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studies have consumed considerably more time and money than are available to this present author. It is very deplorable that interesting and important questions will again remain unanswered, yet espousing such a practice would lead to unwarranted and untenable propositions on an inadequate basis of data: While it would be nice to have answers, I prefer to have no answers at all than to have pretended results of spurious and questionable validity. Despite all of those limitations, I believe it can be said with all justification that a firearm was not an oddball item for a household to have possessed in the colonial and early national period in either Massachusetts or South Carolina. That impression alone, however, does not tell a great deal about culture in the eighteenth century: The fact that guns are widely available does not necessarily say anything about their importance and impact in daily life. It will be the purpose of the following chapter to address these questions, in order to paint a picture of what I call the gun culture of early America.

4. “Arma sunt necessaria”: Guns and their Meaning in Eighteenth-Century Massachusetts and South Carolina

Thursday last a Bear was killed in Chelsea, that weighed three hundred Pounds; and we hear that great Numbers of them have lately been killed in other towns. If these Creatures come to inform us, that the approaching Winter will be very cold, (as some wise Observers say they do) they pay dear for their Officiousness, since they are obliged to leave us their skins to make Muffs of. (BEP 7 October 1754, p. 2) A few days since a superannuated Gentleman, as he was making of Hay, espied 7 or 8 wild Ducks to light down in a small Puddle of Water amongst his Hay Cocks; and being very desirous to have them goes to his House, & musters up an old rusty Musket, which perhaps he had not handled for more than twenty Years, and having loaded the old Piece well, crawls behind a Hay Cock, & finding it would not stand upon the Cock, calls for a Brand of Fire, which no sooner touched the Powder, than the poor Ducks never knew what killed them. But what was the most remarkable, the Report of the Gun was not heard 20 Rods distance [sic]. This extraordinary luck happened in the South Part of Shrewsbury. (BEP 29 July 1771, p. 3) Paris, July 13. M. Duffer, a very eminent Banker, has dismissed himself from this World by the discharge of a Pistol, which however contributes nothing to the discharge of near a Million which he was indebted to several Persons. This, and some other Accidents of the like Nature, makes People as tender of touching a Bill of Exchange, as if they came from a Place infected with the Plague. (BEP 23 September 1754, p. 2)

As I have shown in the preceding chapter, guns were not a rare commodity in either eighteenth-century Massachusetts or South Carolina. Quite on the contrary, many households verifiably owned some sort of firearm or other and even in those cases where the presence of a gun cannot be positively proven, that does not mean that none was present or available. Knowledge of the fact, however, that guns were available does not yet tell us anything about what Americans used guns for and what importance and meanings they held for them. In that context, I am not interested in any spectacular events or momentous developments, but in the every-day patterns of gun use in the colonies. As I have explained above, I am looking for the normalness, not for the extraordinary as what I understand as gun culture. Thus defined, I hope to be able to paint a picture that will serve as a useful background in understanding the impact gun culture made upon political debates in the 1780s and 1790s.

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4.1. Hunting As scholarly opinion has it, it was toward the end of the colonial period and especially during the nineteenth century that hunting came to be charged with great cultural meaning in America. In the words of Daniel Herman, it was “[d]uring and shortly after the Revolution, [that] frontier hunters appeared in popular literature, in art, and even on colonial bills of exchange. In the memory of Americans, courageous hunters had filled the ranks of militias and punished British regulars from Lexington to Yorktown.”383 Yet, as he points out “the worship of hunters reached a crescendo only in the mid-nineteenth century.”384 By then, argues Herman, hunting defined one’s belonging, one’s nationality and one’s gender role: “Hunting was a sacred knowledge handed down from father to son since the age of heroes. To this sacred knowledge – to know how to stalk and to shoot – identified one not just as a man but as an American.”385 While hunting was not being celebrated as important to American character, hunting was, says Herman, important to American societies. This position was in almost direct contradiction to the findings of Michael Bellesiles, who had discounted the importance of hunting in Arming America: “If a settler wanted meat,” declared Bellesiles, he did not pull his trusty and rusty musket, inaccurate beyond twenty yards, off the hook above the door and spend the day cleaning and preparing it. Nor did he then hike miles to the nearest trading post to trade farm produce for powder and shot. To head off into the woods for two days in order to drag the carcass of a deer back to his family – assuming that he was lucky enough to find one, not to mention kill it – would have struck any American of the Colonial period as supreme lunacy.386

Yet, it seems that that was exactly what Americans of the eighteenth century did on a regular basis. Indeed, there can be very little doubt that eighteenth-century Americans hunted regularly. Great amounts of circumstantial evidence exist. Advertisements like “Best Gun-Powder, and the proper sized Deer-Shot exceeding good, to be sold [...],” were a common sight in Massachusetts and South Carolina newspapers, as were such offering to buy or sell wooden decoy ducks and other necessary accouterments for hunting.387 Evidence that is more explicit can also 383 384 385 386 387

Daniel Justin Herman, Hunting and the American Imagination (Washington [DC]: Smithsonian Institution Press, 2001) 4. Ibid., 5. Ibid., 3. Bellesiles, Arming America 103. SCG 31 July 1749, p. 3; BEP 24 September 1764, p. 4. Such ads are virtually innumerable. For a few further examples see: BEP 9 June 1760, p. 4; BEP 24 April 1758, p. 3; BEP 17 October 1757, p. 2; BEP 28 March 1757, p. 2; BEP 19 January 1756, p. 2; BEP 25 May

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be found. South Carolina’s first historian David Ramsay, for example, explained that [h]unting, both as a business and a diversion, has always been useful and fashionable in Carolina. It contributed essentially to the support of the first settlers, and considerably to that of their successors in every period. It has also furnished the most valuable materials for the early commerce of the country, and has ever since added to the list of its exports.388

Similarly, early in the century John Lawson praised the fact that game was plentiful in Carolina and was, accordingly, available for and part of all the inhabitants’ diet: A Quest after Game being as freely and peremptorily enjoyed by the meanest Planter, as he that is the highest in Dignity, or wealthiest in the Province. Deer and other Game that are naturally wild, being not immured, or preserved within Boundaries, to satisfy the Appetite of the Rich alone. A poor Laborer that is Master of his Gun, &c., hath as good a Claim to have continued Coarses [sic] of Delicacies crouded [sic] upon his Table, as he that is Master of a great Purse.389

This prevalence of game had already been an issue in many of the promotional pamphlets of the Carolina proprietors of the seventeenth century, but the importance of game for the diet of South Carolinians continued much longer.390 On the eve of the Revolution, William Mylne reported to a correspondent that while he had a garden and was keeping some chickens, “when I want broth I go to the woods and shoot a squirrel or two, this makes excellent [broth].”391 Similarly, Charles Woodmason reported from the Carolina backcountry that in the 1770s many depended almost exclusively upon shooting wildlife for their

388 389 390

391

1752, p. 2; BEP 8 August 1743, p. 2; BEP 4 May 1772, p. 3; BEP 28 December 1767, p. 3; Boston Censor 11 April 1772, postscript; CMP/CG 8 June 1789, p. 4; SCWG/CMP 23 August, p. 1; SCWG/CMP 29 September 1784, p. 1; Royal Gazette 11 April 1781, p. 4; SCGCJ 4 April 1775, p. 3; SGSC 17 July 1788, p. 2; SCG 21 October 1732, p. 4; SCG 16 April 1737, p. 3; 22 December 1739, p. 3. David Ramsay, History of South Carolina: From Its First Settlement in 1670 to the Year 1808, South Carolina Heritage Series, 3-4 ([Spartanburg, SC]: Reprint Co., 1959) 225. Lawson, History of North Carolina 8. See Jack P. Greene, ed., Selling a New World: Two Colonial South Carolina Promotional Pamphlets, 1st ed. (Columbia, SC: University of South Carolina Press, 1989) 7, 10. For a good overview of the Southern promotional literature see Hugh T. Leffler, “Promotional Literature of the Southern Colonies,” Journal of Southern History 33 (1967). Ted Ruddock, ed., Travels in the Colonies in 1773-1775: Described in the Letters of William Mylne (Athens, GA: University of Georgia Press, 1993) 31. Editor’s emendation.

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support, the general economic prosperity of the colony notwithstanding: “[...M]any live by Hunting, and killing of Deer.”392 In Massachusetts, the situation was not very different. Many reports underline the abundance of game and of people hunting such game, presumably for the pot: On Thursday last John Jenks of Lynn, being at work in his Field, discovered a Flock of Ten wild Turkies among the Corn, at which he discharged his Gun, and kill’d five upon the Spot, and so wounded another, that he soon recovered it. They were fine young Birds, and weigh’d about nine Pounds each. ‘Tis said there have not been seen or kill’d so many wild Turkies in that Town in fifty Years past.393

Bigger animals such as deer and moose were also hunted,394 as were bears, which ended in the pot just like all the other game. The Berkshire Chronicle reported from Pittsfield in August of 1790 that “[o]n Sunday last, was killed in this town, a fine Fat Bear. – Many who were destitute of fresh meat were plentifully supplied.”395 Interestingly, such hunting practices were not limited to animals on land. In Massachusetts, where fishing and whaling had a long history, even whales were occasionally killed with firearms rather than with the usual harpoon: On Tuesday, the 12th instant, a Whale was discovered very near the shore, thought to be in pursuit of a Scool [sic] of Herrings; upon which four Men betook themselves to a Canoe with their arms and ammunition, and going without the Whale, did such Execution by their firing, that in a few Minutes the huge Animal was killed, and by an Easterly Breeze was cast ashore at the Southerly End of Hull Beech [sic]; where upon survey the enterprizing and lucky Captors found that they were possessed of a Fish commonly known by the Name of Fin-back Whale, which measured 56 Feet and an half in Length, and it is thought will yield two tons of Oil.396

Hunting was not always an easy undertaking, especially as the eighteenth century progressed. As can already be seen from some of the quotations above, game became scarce in some areas. The primary reason for that was overhunting. That this was already a problem becomes evident from the many game laws 392

393 394 395 396

Richard James Hooker, ed., The Carolina Backcountry on the Eve of the Revolution: The Journal and Other Writings of Charles Woodmason, Anglican Itinerant (Chapel Hill, NC: Published for the Institute of Early American History and Culture, Williamsburg, Virginia by the University of North Carolina Press, 1953) 39. BEP 11 October 1736, p. 2. BEP 3 July 1769, p. 3. Berkshire Chronicle 12 August 1790, p. 3. A similar incident is reported in the Berkshire Chronicle of 25 September 1788, p. 3. BEP 25 May 1761, p. 3. For a similar report from New Hampshire see BEP 7 April 1760, p. 3.

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both Massachusetts and South Carolina enacted in order to safeguard the animal population for future generations. Massachusetts enacted what might be called a conservation act as early as 1717, arguing that [w]hereas the waterfowl of divers[e] kinds, which were wont in former years, in great numbers, to frequent the maritime towns of this province, were of great service and benefit to the inhabitants, both for meat and feathers, but are now in great measure affrighted, and driven away by many persons who have made use of boats, canoo’s [sic], floats, or other vessels, therein to go off to shoot them, at distance from the shoar, upon the flatts and feeding grounds, which practices, if continued, are likely to have the ill effect to cause the fowl wholly to desert and disuse the said Towns[.]397

Similarly, deer and moose must have been greatly overhunted, as the provincial government of Massachusetts enacted legislation for their protection as early as 1693, repeating its action many times throughout the century.398 South Carolina also recognized overhunting as a problem, but diagnosed the situation much differently. Hunting for the pot does not seem to have been the primary issue there, for the legislature in 1769 described the issue in different terms. The problem consisted primarily of the fact, stated the preamble, that many idle, loose, and disorderly persons, as well residents as non-residents in this Province, have made, and do make, a constant practice of wandering up and down the same [province], and of killing the Deer, merely for the sake of the skins, leaving the flesh to rot; whereby wolves and other beasts of prey, are brought among the stocks of cattle, hogs, and sheep, to the great annoyance and damage of the owners thereof [...].399

The law not only established hunting seasons for the animals and placed penalties upon offenders, but it specifically excluded subsistence hunting from the ban: “Provided also, that nothing in this act contained, shall extend, or be construed to extend, to any person who shall kill, at any time, any Deer for food, for the necessary subsistence of himself or family, so as such [sic] person do not sell or dispose of the skin of any Deer so killed.”400 The act, however, cannot have gone far in protecting the game of South Carolina. While originally limited in its operation to five years, it was continued repeatedly until at least 1789.401

397

398 399 400 401

An Act for the Better Regulation of Fowling (Ch. 10, 1717), in: Acts and Resolves, II:87f. Similar acts were passed at various times. See for example An Act to Prevent the Destruction of Wild Fowl (Ch. 17, 1727), in: Acts and Resolves, II:437f; An Act to Prevent the Destruction of Wild Fowl (Ch. 3, 1747), in: Acts and Resolves, III:359. An Act for the Preservation and Increase of Moose and Deer within this Province (Ch. 28, 1763), in: Acts and Resolves, IV:683f. SCGGA 1 January 1784, p. 4. Ibid. See CMP/CG 21 February 1789, p. 2 for a notice of the extension.

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It is evident from the above quotations that hunting was considered useful and necessary in both Massachusetts and South Carolina. To protect this resource of food, both states enacted laws to protect the wildlife population from the effects of overhunting. Yet, under different circumstances, ‘overhunting’ was also considered a virtue. Much of the wildlife of the colonies was dangerous to the population and reports of unpleasant encounters with bears and wolves abound, in which killing the animal with a gun saved the inhabitants. The Boston Evening Post reported an occasion where a bear entered a house: We hear from Cumberland in Nova-Scotia, That some Time in November last, in a remote Part of the Town a Child about 3 Years of Age being picking {ch}ips at the Door, was caught by a Bear, which {carr}ied him some Distance, the Mother hearing the {chil}d scream, ran to the Door, and seeing the Child in the Bear’s Arms ran to him, and took the Child {fr}om him; the Bear then seized the Woman and threw her down, tore her Cloths almost all off, and bit her in both Thighs; she at length got from him, and escaped into the House, the Bear followed her, she then taking another Child out of the Cradle, ran to a Neighbour’s House, which was at some Distance, the Neighbour carried a Gun loaded, and shot the Bear in the House.402

This story shows very clearly that the colonists had a great interest in eliminating from their environments wildlife they judged to be pests and dangerous or undesirable to the population or farming. “[T]he increase of stock will very much redound to the general interest of this Province,” argued the lawmakers of South Carolina, enacting a law “to induce people industriously to endeavour to destroy such beasts of prey as very much discourage the inhabitants to go upon stock.”403 One such act in South Carolina stated that “considerable damage is yearly sustained by the inhabitants of this Province, by the mischief done by beasts of prey” and undertook to make sure “that due encouragement may be given for destroying such beasts.” This 1726 act established a schedule of monetary rewards for presenting to a justice of the peace the head of any “wolf, tyger or bear” as well as of “wild cat[s]” killed. Massachusetts enacted a similar law in 1717.404 402

403 404

BEP 7 January 1771, p. 3. The Essex Gazette of Salem reported the same incident in its issue of 8 January 1771, p. 3 (The issue is dated incorrectly to 8 January 1770, yet the error is obvious from the numbering sequence of the issues). For further reports of encounters with bear and wolves see for example BEP 5 November 1759, p. 2; BEP 3 December 1759, p. 2; BEP 9 March 1761, p. 3; An Act to Encourage the Destroying of Beasts of Prey (#550, 1733), in: StaL III:351 An Act for the Encouragement of Killing and Destroying Beasts of Prey (#521, 1726), in: StaL III:271. South Carolina also wanted unmarked cattle killed. An Act for Taking up and Killing Wild, Unmarked and Out-lying Cattle (#213, 1703), in: StaL II:220; An Act in further Addition to the Act for Encouraging the Killing of Wolves, Made in the Fifth Year of the Reign of King William and Queen Mary (Ch. 11, 1717), in: Acts and Resolves, II:88f.

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The success of such laws must have differed between the two states. In Massachusetts reports of publicly organized hunts appear frequently in the newspapers, proclaiming the success of the hunters: Last Monday, agreeable to previous engagement, a number of young men of this town [Pittsfield] went upon a hunting match for squirrels, &c. but the badness of the weather prevented many who ha{d en}gaged from attending. Those wh{o did} attend met in the evening at Ca{pt.} Caldwell’s Tavern, and produced upw{ards} of seventy squirrels and partridges {of} which they made an elegant supper, {and} spent a festive evening in the gre{at}est harmony and jocundity.405

Hunting and hunting prowess carried so much weight with the public in Massachusetts that even individual hunters were occasionally named in the papers and praised for their hunting achievements. That was the case with Mr. Levi Bixby of Winchendon, now in the forty seventh year of his age, [who] has killed 14 wolves, 33 bears, 10 deer, 5 moose, 16 otters, 17 beavers, 2 woollenegs, 22 racoons, 33 foxes, about 130 minks, 500 musquash, 74 sables, 17 porcupines, about 100 hares, 5 rattlesnakes, and 55 polecats, besides other small game and wild fowl almost innumerable.406

South Carolina seems to have been less successful in its endeavors to have ‘pests’ hunted out of existence. While laws to encourage the hunting of beasts of prey were repeatedly enacted during the first half of the century, on the eve of the Revolution public complaints suggest that not much was being done in that direction. The Grand Jury of the District of Camden, for example, vented its discontent: “We present as a Grievance, The Want of a Law to encourage the killing and destroying of Beasts of Prey, such as Wolves, Tygers, Bears, &c., &c., which, it is found, grow very numerous, and of Course very detrimental to the Inhabitants.”407 The situation deteriorated further to the point where not even downtown Charleston was secure from large predators: “On Wednesday morning last,” reported the Charleston Morning Post in 1783, before day, a large wolf was killed in Broad street, by one of the City guard, who were alarmed by a man from the beef market, whose meat this animal was devouring. – He

405

406 407

Berkshire Chronicle 23 October 1788, p. 3. For similar reports see SEG 15 November 1788, p. 3 with 1140 squirrels killed; BEP 18 November 1765, p. 3 for 1563 squirrels shot; and BEP 19 April 1773, p. 2 for 686 robins killed. Hampshire Gazette 15 June 1791, p. 3. The same notice ran in the Western Star of 7 June 1791, p. 3. SCG 31 May 1773, p. 4. The same notice ran a day later in SCGCJ 1 June 1773, p. 1.

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was seen after dark on Tuesday night near Mr. Watson’s garden up the path, where he bit a man, and killed several dogs; he also bit a man near the lines.408

Indeed, it seems that the primary purpose of hunting, especially in lowcountry South Carolina, was significantly different from the one espoused in the backcountry or in Massachusetts. Instead of hunting for food or in order to kill dangerous predators, hunting seems to have been seen as a diversion by many in South Carolina. “No pleasure’s like hunting, / To pass the long day [...]” proclaimed a contemporary ballad, and Francisco de Miranda, who visited the United States in 1783 and 1784, reported from the Carolinas that “hunting, dancing, and smoking tobacco in pipes are the favorite diversions” of the tidewater region.409 Even a handbook on the topic was published at the time – entitled The Sportsman’s Companion – directed to “such young Gentlemen as are desirous of becoming Adepts in the Diversion of the Field.”410 In that diversion, South Carolinians are reported as having been very adroit. David Ramsay describes a prototypical hunting scene, in which the skilled hunters make short work of their prey: As soon as the deer appears within gun shot, he is leveled at by the hunters in succession, but most of them are such dextrous marksmen that he hardly ever escapes, and is often laid low by the first or second fire. Instances not unfrequently occur where the shot takes effect, though discharged when the shooter and the stricken deer are both in motion; and the latter at full speed.411

Indeed, Ramsey proclaimed that “[b]y such practices the inhabitants are trained to feats in shooting which will with difficulty be believed by the inhabitants of cities. A good rifleman with a fair shot seldom misses a deer or a wild turkey at a distance of 150 yards, and is often equally successful in hitting either of them though in full speed.”412 This dexterity in hunting and shooting, according to Ramsey, was acquired from an early age on. “Children are taught by their example, and [are] early equipped for the chase with a dog, a gun, and a horse. Boys not more than ten years old can show the deer they have killed.”413 Hunting was so popular in South Carolina that clubs existed to promote the expertise and the social experience of the chase. Shooting contests and target 408 409

410 411 412 413

SCWG/CMP 19 December 1783, p. 3. Anon., The Hounds are all out, in: The Drunken Husband and the Tea-Drinking Wife, &c. n.p., n.d. (=Evans 49066); John Samuel Ezell, ed., New Democracy in America: Travels of Francisco De Miranda in the United States, 1783-1784., [1st ] ed. (Norman, OK: University of Oklahoma Press, 1963) 23. Anon., The Sportsman’s Companion; or, an Essay on Shooting [...]. New York: Robertsons, Mills and Hicks, 1783 (=Evans 23785), p. [iii]. Ramsay, History of South Carolina: From Its First Settlement in 1670 to the Year 1808 226. Ibid., 227. Ibid., 225.

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practice were occasionally organized to exercise marksmanship.414 More importantly, however, these institutions not only organized hunts, but also were social organizations more generally. “Politeness and hospitality are incorporated with these social clubs,” opined David Ramsay, reporting that “[a]ny decent stranger coming to reside in the district, if he chooses, is proposed as a member and rarely rejected.”415 At the first glance, hunting practices in Massachusetts and South Carolina differed only very little. Both colonies viewed hunting as necessary and useful, but the social connotations were very different. The major difference lies in the fact that in South Carolina hunting took on a meaning of social exclusivity it never had in Massachusetts. Some “gentlemen” in South Carolina undertook the hunt for their distraction, entertainment and for socializing and The Sportsman’s Companion declared “that it is much to be regretted that any should have access to this diversion, but such as are at least competent judges of so Majestical an amusement.”416 Thus, South Carolina hunters modeled themselves very strongly upon the British gentry: Neither were dependent upon their own work for their livelihood but could instead devote much of their time to pleasurable activities in keeping with their superior social aspirations. For another group of South Carolinians and for most inhabitants of Massachusetts, hunting was largely a dire necessity in order to put food on the table or keep wildlife away from fields, pastures and the family. Hence, the situation in South Carolina was similar to that in England, where the rights and privileges of the gentry were maintained by the country’s game laws.417 The South Carolina laws passed for the preservation of deer support this contention. The act of 1769, for example, blamed “many idle, loose, and disorderly persons” for the depletion of game and the attendant ills the act addressed. Furthermore, while it allowed hunting for the pot, it placed the burden of proof on the hunter: “And in case any person shall be prosecuted for killing Deer, within the times prohibited by this Act, and such person shall alledge [sic], that he killed such Deer for food 414 415 416

417

SCG 17 March 1757, p. 4. Ramsay, History of South Carolina: From Its First Settlement in 1670 to the Year 1808 226. Anon., The Sportsman’s Companion, p. 26. In this instance, the author speaks more specifically of hunting grouse and heathcock, but is seems very clear from that he did not see hunting as a diversion for just anyone, but as pastime for some select few. As P.B. Munsche has shown, not only the game laws proper but a number of other acts protected an almost exclusive right of the gentry and the aristocracy to hunt in England during the eighteenth century. The hunting privilege was a central issue in the selfperception of the gentry, which defined itself very much by the lifestyle reflected in hunting. P. B. Munsche, Gentlemen and Poachers: The English Game Laws, 1671-1831 (Cambridge/New York: Cambridge University Press, 1981). Joyce Malcolm has argued that one of the primary effects of the game laws was to disarm the population even after the English Bill of Rights had guaranteed the right to have after 1688/89. Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right (Cambridge, MA: Harvard University Press, 1994) especially chapter 4.

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for the necessary subsistence of himself or family, the burthen of the proof shall lie on the person so prosecuted.”418 In order to meet this standard, the law required that “such person do not sell or dispose of the skin of any Deer so killed.”419 The gentry were not so troubled in their hunting, for the act “[p]rovided always, that it shall and may be lawful to and for any freeholder, or house-keeper, at any time, to kill, or cause to be killed, any kind of deer in his inclosed grounds, without being liable to any penalty for so doing.”420 The fact that this law may be seen in the light of contemporary British game laws becomes even more clear when the prosecution of offenders is taken into view. In cases “where the owner of any lands shall prosecute, for any unlawful hunting on his or her lands, the oath of such owner shall be sufficient evidence to convict the offender.”421 These provisions created a bias very much in favor of the rich, landed aristocracy of South Carolina and discriminated against poorer inhabitants: The former could hunt to their heart’s content and at the same time keep the chase limited to themselves by prosecuting those of less social standing.422 Similarity existed, however, in the fact that hunting was – or was at least seen as – an exclusively male undertaking. Reports of women hunting do not seem to exist. For men, hunting was an important part of their gender role. “I know the early use of a gun is recommended in our country, to teach our young men the use of fire-arms, and thereby to prepare them for war and battle,” lamented Benjamin Rush in 1790. Thus, Rush perceived the use of firearms in hunting and the military as belonging to a specifically male gender role. Few formulated that belief as explicitly as Rush, who, however disagreed with the recommendation that boys should be familiarized with guns at a young age. He recommended “to exclude gunning from among the amusements of our young men.”423 In his opinion, only bad things would come of hunting: 1. It hardens the heart, by inflicting unnecessary pain and death upon animals. 2. It is unnecessary in civilized society, where animal food may be obtained from domestic animals, with greater facility. 3. It consumes a great deal of time, and thus creates habits of idleness. [...] 6. It exposes to fevers, and accidents. The news-papers are occasionally filled with melancholy accounts of the latter, and every physician must have met with frequent and dangerous instances of the former, in the course of his practice.424 418 419 420 421 422 423 424

SCGGA 1 January 1784, p. 4. Ibid. Ibid. Ibid. Provisions against vagrant hunting point in same direction. See for example the grand jury grievances in SCG 27 December 1773, p. 1. Benjamin Rush, Thoughts upon the Amusements and Punishments which are Proper for Schools: Addressed to George Clymer, Esq. Philadelphia, PA: s.n., 1790 (=Evans 22866), p. 3 and p. 2. Ibid., 2f.

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Indeed, Rush was right to point out that hunting was extremely dangerous, not so much because of wild animals but because of the other people involved. Reports of hunting accidents were frequent fare in the papers: We hear from Palmer that on the 5th inst. Mr. John Lammon of that place and Mr. John Davis of Ware, being out hunting after an Otter, unknown to each other, as Lammon was in the bushes on a Bank near a Mill-Pond, Davis came on his Back at about 6 Rods Distance, and imagining Lammon’s Head to be the Otter, fired a large Charge of Buck Shot at him, which pitch’d him into the Water: Lammon was dangerously wounded, one of the shot lodged in his Back, one in his Neck, besides several small Wounds.425

Being shot by a fellow hunter was not the only danger. Guns going off accidentally were just about as dangerous. Similarly, simply pursuing the game might put the hunter’s life at risk, remarked Francisco de Miranda: I went on one of these [hunting] excursions and assure you that at every moment I expected one of the participants to have leg, arm, or head broken. The fashion is to dash forth on horseback behind the discovered buck through a forest covered with branches, the horse sometimes barely having room. The horse is already accustomed to this and happen what may, charges after the game and acts as the guide; the rider bends down, grasping the neck of the horse. There is no lack of mournful reminders of this sport in the region.426

Nonetheless, most people ignored these dangers and disagreed with Rush on his negative assessment of the value of hunting. Most likely, many would much sooner have subscribed to David Ramsay’s analysis: Hunting is in some aspects war in miniature. The votaries of the one are in a good school of preparation for the other. This was amply experienced in the course of the American revolution [sic]. When Charlestown yielded to the conquerors in 1780, the contest was recommenced by the huntsmen of the country under the auspices of their gallant leaders Sumpter and Marion. The same arts, arms and equipments which had been used against wild beasts, were successfully employed against the invaders, and made all their movements in a woody country extremely dangerous.427

Thus, male hunting and the prowess with a gun acquired in its course came to be seen as a very positive virtue in eighteenth-century America.

425

426 427

BEP 17 December 1764, p. 3. In the next issue (BEP 24 December 1764, p. 3) it was reported: “We hear from Palmer, that Mr. John Lammon died there of the Wounds he received by Mr. John Davis, who shot him for an Otter as mentioned in our last.” Ezell, ed., New Democracy in America 15. Ramsay, History of South Carolina: From Its First Settlement in 1670 to the Year 1808 225.

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4.2. Guns and the Military Military institutions were some of the most important contexts in which Americans came in contact with firearms. Both British professional military forces and the colonial and state militias used guns in the immediate defense of the colonies, as well as in the various wars the colonies fought with either the native population or European colonial rivals. Yet, while Americans certainly served in British professional regiments, for the purpose of this study the standing forces will primarily be regarded as a foil against which the militia developed its distinctive shape in the North American colonies. Since the first arrivals of Europeans on the American continent, their settlements had always been military installations, too. Accordingly, most colonies – Pennsylvania being the only exception for a long time – maintained a militia organization, which was, for most of the colonial period the only military force available:428 “[...F]or the security of this their [majesties’] province against any violence or invasion whatever, it is necessary that due care be taken, that the inhabitants thereof be armed, trained, and in a suitable posture and readiness.”429 Under the militia laws, large parts of the male populations were required to serve, as under the Massachusetts militia act of 1693 with its typical provision stating “[t]hat all male persons, from sixteen years of age to sixty (other than such as are hereinafter excepted), shall bear arms, and duly attend all musters and military exercises of the respective troops and companies where they are listed or belong.”430 In addition to demanding personal service in the militia from the male population, the laws generally also required that all militiamen arm and equip themselves. In Massachusetts, this meant That every listed souldier and other householder (except troopers) shall always be provided with a well fixt firelock musket, of musket or bastard musket bore, the barrel not less than three foot and a half long; or other good fire arms, to the satisfaction of the commission officers of the company; a snapsack [sic], a coller with twelve bandeleers, or

428

429 430

Pennsylvania did not have a militia well into the eighteenth century due to the preponderance of pacifist Quaker beliefs in Pennsylvania. See Samuel J. Newland, The Pennsylvania Militia: The Early Years, 1669-1792 (Annville, PA: Commonwealth of Pennsylvania Department of Military and Veterans Affairs, 1997) for details. Other states did not have an effective militia even though they had the legal basis. Shy, Toward Lexington: The Role of the British Army in the Coming of the American Revolution 12, 6-19. An Act for Regulating the Militia (Ch. 3, 1693), in: Acts and Resolves, I:128. Ibid. The militia laws of the colonies were generally very similar in their basic provisions. Yet, as colonial assemblies often reacted to individual circumstances and challenges, militia acts were very frequently amended and generally not consolidated into a code, it is very difficult to establish which of the more elusive provisions may have been in force or not at any particular time.

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cartouch-box; one pound of good powder, twenty bullets fit for his gun, and twelve flints; a good sword or cutlace, a worm and priming-wire fit for his gun [...].431

According to these acts, the vast majority of the free male population, and often white servants or even trusted slaves, were by law required to own a musket and keep it ready in their household. Thus, the militia was largely synonymous with the white male population.432 Firearms and their use were part and parcel of service in the militia. Usually, militia training included some sort exercise in coordinated or individual firing. Even outside training days, individuals undertook target practice to hone marksmanship skills and to train the handling of their guns.433 While these exercises were rather useless for military firing – muskets being rather inaccurate, they were just leveled rather than aimed in the direction of the close ranks of enemy troops – Massachusetts encouraged such target practice: When it banned firing guns within Boston, for example, target practice was specifically excluded from the imposed limitations.434 Militia service was an integral part of the lives of almost all white men in the early American colonies. At the very minimum, men participated in the regular musters and training days that were required during the year. Occasionally, during internal disturbances or in wartime, militiamen would see periods of actual service with their units. At other times, the militia was used as a draft pool 431

432

433

434

Ibid., 129. The act also provided for public arms to be supplied to those who could not afford their own. Ibid., 130.Troopers belonged to mounted units and were generally more affluent men who could afford to supply a horse for military service. Some exceptions always existed from this rule. Officers of the state, holders of elective offices and indispensable workers – ferrymasters for example – were often exempted from militia service. In 1759, Massachusetts also exempted the inhabitants of Nantucket from personal service due to the distance from the mainland, levying a special tax instead. An Act subjecting the Inhabitants of the Island of Nantucket to an Assessment towards the Charge of defending his Majesty’s Territories, in Lieu of their Personal Service (Ch. 23, 1759), in: Acts and Resolves, IV:195f. Massachusetts also pioneered the exemption of conscientious objectors, allowing Quakers to pay a tax freeing them from personal service. An Act to exempt the People called Quakers from the Penalty of the Law for Non-attendance on Military Musters (Ch. 17, 1757), in: Acts and Resolves, IV:49ff. A similar law, containing no special tax, was enacted in 1763. An Act to exempt the People called Quakers, from the Penalty of the Law for Non-attendance on Military Musters (Ch. 26, 1763), in: Acts and Resolves, IV:620f. For some examples of training day firing exercises see BEP 4 September 1738, p. 2; BEP 20 September 1762, p. 3; BEP 13 July 1772, p. 1; SCG 7 November 1754, p. 1; SCG 10 February 1757, p.2. Reports of individual target practice are in the BEP 4 June 1770, p. 4; BEP 12 February 1739, p. 2 and Boston News-Letter 22 February 1739, p. 2. St. Andrew’s Hunting Club in South Carolina also required target practice of its members. SCG 17 March 1757, p. 4. An Act to prevent the firing of Guns charged with Shot or Ball in the Town of Boston (Ch. 11, 1746), in: Acts and Resolves, III:305f.

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for expeditionary forces.435 Thus, wartime service was a rather common experience for many American men of the eighteenth century, to the point where at least one third of the male population between 16 and 19 years of age in Massachusetts served at some time or other during the French and Indian War.436 In addition to requiring the male population to be available and prepared for military service, the colonial and state governments themselves invested heavily in the military preparedness of their provinces. The colonies built armories and stocked large quantities of arms and ammunition. Keeping enough muskets, cutlasses and cannon at hand for the contingency of war or insurrection, however, was a costly business, as the expense of maintaining these stores and keeping them in good repair was often considerable.437 While similar in principle and in origins, the militia systems of Massachusetts and South Carolina developed quite differently during the eighteenth century. In the latter, the suppression of the ever-growing slave population became the primary purpose of the militia. Originally, the legislators of South Carolina had envisioned a separate slave patrol for that purpose, but the inefficiency and the neglect of that system caused them to change their mind and require the militia captains to organize slave patrols where those were not otherwise arranged.438 Yet even this default patrol system to be footed by the militia does not seem to have worked very well as complaints of their inadequacy continued unabated.439 As the patrols were unable to guarantee the security of the white and the suppression of the black population, the legislature came up with a different 435

436 437

438 439

For examples of this practice see BEP 28 April 1746, p. 3; BEP 19 April 1756, p. 1. The South Carolina militia seems not to have been used as a draft pool very much and considering its very low state of readiness, such drafting probably would not have yielded good results anyway. Anderson, A People's Army 60. In Massachusetts the Militia Act of 1693 required that all towns keep a suitable stock of ammunition. An Act for Regulating of the Militia (1693), in: Acts and Resolves, I:131. For two examples of how expensive the maintenance of public arms was, see the account gunsmith John Milner filed for ₤ 976-13-9. Account of John Milner for cleaning guns, 1739-1740. Records of the General Assembly of South Carolina, South Carolina Commons House of Assembly, Accounts, 1740-1775. 1 Box, RG S165224. SCDAH. The Commons House of Assembly accepted Milner’s account on 19 March 1741. J. H. Easterby, R. Nicholas Olsberg, and Terry W. Lipscomb, eds., The Journal of the Commons House of Assembly, [1st ] ed., vols. (Columbia, SC: Historical Commission of South Carolina, 1951) Ser. 1, II:530f. The gunsmith Ann Robinson filed a similar account for over 732 pounds, of which ₤ 2-19-1/2 were still due. Account of Ann Robinson, Records of the Comptroller General, Accounts Audited of Claims Growing out of the Revolution, 1778-1804. RG 126003. SCDAH. I am indebted to Robert H. Mackintosh of the SCDAH for bringing these records to my attention. An Act for Establishing and Regulating of Patrols (#617, 1737), in: StaL III:460. See for example SCG 1 May 1756, p. 1; SCG 25 January 1772, p. 1; SCG 24 May 1773, p. 2; SCG 17 January 1774, p. 1; SCG 3 June 1774, p. 4.

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expedient also based upon the militia idea of an armed populace. Instead of instituting a public patrol force, the Assembly required the male population to go about armed to be able to repel any possible attempt at insurrection. A law enacted just weeks before the Stono Rebellion threatened hefty fines for anyone subject to the militia law “who shall not carry with him a Gun or a pair of Pistols in good Order and fit for Service, with at least six Charges of Gun Powder and Ball, and shall not carry the same into the Pew or other seat where such Person shall sit” in church on Sundays and on Christmas Day.440 By the middle of the century, the militia in South Carolina had fallen into decrepitude and was neither a viable military force nor a sufficient police force any longer. In his speech to the General Assembly in 1756, Governor Lyttelton presented the state of the militia as a grave concern and demanded immediate action from the legislature: “The condition of your Militia, I fear, is such as requires much Reformation: And, as our Security must, in a great Measure, arise from the good Order and Discipline that shall prevail in it, I earnestly exhort you, to take this Matter into your immediate and most serious Consideration.”441 Similarly, the grand jury of the province frequently complained of the “great neglect of the militia law, the people of the country not mustering often.”442 A resurrection of the militia, however, did not materialize quickly. On the very eve of the Revolution the grand jury of Cheraws District still found it necessary to “present as a Grievance, the general Neglect of the Militia and Patrol Acts.”443 The Massachusetts militia survived much longer as a viable military fighting force than did its South Carolina counterpart. The strong military presence of the French in Canada probably induced greater diligence, as the military threat was generally more visible than in the southern colony. Thus, not only did its musters happen on a more regular basis, but also the actual service of the militia or of individual militiamen drafted into active regiments was needed more often than was the case in South Carolina. In addition to the many reports of the militia’s activities in Massachusetts, the considerable number of militia manuals, prints of the militia acts and similar publications testify to the greater vitality of the militia system in the Bay Colony.444 440

441 442 443 444

An Act for the better Security of the Inhabitants of this Province against the Insurrections and other wicked Attempts of Negroes and other Slaves, in: SCG 18 August 1739, p. 1. The Act is not printed in the StaL. Massachusetts also exhorted its citizens to carry arms on Sundays during King George’s War. BEP 28 April 1746, p. 4. SCG 11 November 1756, p. 1. SCG 2 June 1766, p. 1. SCGCJ 1 June 1773, p. 1. The grand jury of Beaufort district issued a similar presentment in November of the same year. SCGCJ 28 December 1773, p. 1. Lawrence Delbert Cress, Citizens in Arms: The Army and the Militia in American Society to the War of 1812 (Chapel Hill, NC: University of North Carolina Press, 1982) 12; Shy, Toward Lexington: The Role of the British Army in the Coming of the American Revolution 14. For some

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Greater stability of the militia system, however, does not mean that nothing was amiss in Massachusetts’ military establishment. In 1746, Governor William Shirley found it necessary to issue a proclamation demanding tighter scrutiny by the militia officers about their units’ readiness and the lack of skill in handling guns in Massachusetts recruits caused concern during the French and Indian War.445 By the early 1770s, the “declining State” of the militia occupied the General Court after Governor Thomas Hutchinson had suggested the necessity of action in a speech to both houses of the legislature.446 It was because “that Subordination which distinguished this Government in the Days of our Forefathers is lost,” charged Hutchinson, that the militia was no longer up to its former par. The more likely reason, however, for the decline was the fact that Massachusetts was more secure in its borders than it had ever been since its establishment in the seventeenth century: With France removed as a colonial power in North America at the end of the French and Indian War, the major immediate threat to the colony had been eliminated. From a Massachusetts standpoint, the native population was the only remaining enemy, and that enemy was a distant one for most of the population. With war and the necessity of defending their homes being only a very remote possibility, the militia had simply outlived its raison d’être in the eyes of many colonists. Yet, the military function of the militia was not the only one. Perhaps just as important was its social function. Training days were always great occasions for entire families to travel to wherever the muster would take place and to socialize with their neighbors. Often opening with a sermon, militia training generally took place in a festive atmosphere:447 In the Morning His Excellency’s Company of Cadets, commanded by the Hon. Col. Hancock, appeared under Arms in the Training Field, and marched into Kingstreet, with a Band of Music, where, after going through their Exercises and Manoeuvures [sic], [they] fired three Vollies: - In the Forenoon the Troop of Guards commanded by Lieut. Colonel Snelling, in the Absence of Colonel Phips, were mustered, as also the several

445 446 447

examples of such publications see The Manual Exercise as Ordered by His Majesty in 1764. Together with Plans and Explanations of the Method Generally Practis'd at Reviews and Field Days, &C (Boston: Printed by T. and J. Fleet, at the Heart and Crown, in Cornhill, 1773 (=Evans 42446)); A New Exercise to Be Observed by His Majesty's Troops on the Establishment of Great-Britain, and Ireland. By His Majesty's Special Command. (Boston: reprinted, and sold by Green & Russell, in Queen-Street, 1757 (=Evans 40887)); Pickering, An Easy Plan of Discipline for a Militia; A Plan of Exercise, for the Militia of the Province of the Massachusetts-Bay: Extracted from the Plan of Discipline, for the Norfolk Militia (Boston: Printed by Richard Draper, 1770 (=Evans 11121)). BEP 26 May 1746, p. 1. A similar order was reported in the BEP 21 August 1738, p. 2; Anderson, A People's Army 75. BEP 10 June 1771, p. 3; BEP 3 June 1771, p. 2. For an example of a training day sermon see BEP 24 July 1738, p. 2; BEP 29 November 1773, p. 3.

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Companies of the Boston Militia under the command of Colonel Erving, and marched to the Training Field under their respective Captains [...]; after forming into Battallion and performing Military Exercises, they marched into King-street, preceded by the Troop of Guards, where three Vollies were fired by the Troop and Battallion, and a discharge of the Artillery. – After which the Officers and Company of the Troop dined at Mr. Bracket’s, the King’s Arms, on Boston Neck. – The Field Officers and the Officers of the Militia Companies dined at Capt. Jones’s the Exchange Tavern. – The Officers and Company of the Artillery at Mrs. Cordis’s the British Coffee House. – The Officers and Company of Cadets at Col. Ingersol’s the Bunch of Grapes. The Military Exercises and Manoeuvres of each Corps respectively, were performed to the universal Satisfaction of a numerous Company of Spectators both of Town and Country. In the Evening was a grand Concert of Musick at Concert Hall; – and a Number of Fireworks were played off in King Street.448

The social importance of the militia accordingly survived the end of its military value well and militia training often took precedence over other public events.449 Interestingly, the militia seems to have served both in the perpetuation of social unity as well as social distinction. Social equality was served in the sense that males of all social and economic classes turned out together for military training. At the same time, however, the social structure was not thereby put in jeopardy: Officers were generally appointed from the higher strata of society to insure that the military command structure did not upset the system of deference in place in civil society. Furthermore, officers had special privileges. The entertainment described in the quote above, for example, excluded the rank and file of the militia, while the officers participated.450 Private military institutions played an important role in maintaining military traditions and bringing them to the center of societal attention. Since the early days of the Bay colony, the Ancient and Honorable Artillery Company had led a special existence among the military establishments of Massachusetts. Founded in 1638 as a sort of central coordinating body for the militia “out of their care of the publicke weale & safety by the advancement of the millitary arte, & exrcise [sic] of armes,” the company became an important pillar in the Boston militia. The association with the pastime of the upper class in a deferential society certainly lent military exercise the air of being worthwhile.451 448 449

450 451

BEP 27 September 1773, p. 2. In 1790, the drawing of the Leicester Academy Lottery was postponed because it coincided with the training day of the Worcester county militia. American Herald and Washington Gazette 27 September 1790, p. 3. The rank and file of the Artillery Company and the Company of Cadets did participate. On those organizations see below. Charter of the Ancient and Honorable Artillery Company, in: Nathaniel Bradstreet Shurtleff, Records of the Governor and Company of the Massachusetts Bay in New England: Printed by Order of the Legislature, 5 v. in 6 vols. (Boston, MA: W. White, Printer to the Commonwealth, 1853) I:251f. In its early years, the Artillery Company had enjoyed a

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Charleston had a similar institution. In 1757, the South Carolina Gazette reported that the Military Club of the Town was exercising regularly and had been granted the use of public arms for their training: The Military Club in this Town, having appointed some of their Members to wait upon the Governor, to sollicit [sic] the Use of some Public Arms, that they might learn the Bayonet Exercise; we are informed, that His Excellency received their Application with his usual Condescension, applauded their Public Spirit, and was pleased to assure them, that nothing in his Power should be wanting, to promote their {attaining} a Proficiency in Military Exercises. This Club now consists of about 80 Members, and exercises every Thursday Afternoon, on the Parade near Mr. L{inde}’s House in Ansonborough.452

The upper echelons of South Carolina society seem to have enjoyed military play just as much as their northern counterparts, yet the strain and burdens of actual service must have been less to their liking: Apart from parades and show in Charleston, the South Carolina militia was in no state of readiness, the patrol laws went unheeded and the town watch were farmed out to hired watchmen. Indeed, the military organization of Charlestown seems to have been primarily social in nature.453 The militia also played a major role as a political concept; a role that was, arguably, more important than either the military or the social function it maintained. Since the revolutions of the seventeenth century in England, the militia formed of an armed populace had developed as a very influential concept. Reviewing the entire set of royal prerogatives and parliamentary and popular powers in and after the settlement of 1688/89, a group of radical Whigs – often called Commonwealthmen, True or Real Whigs – focused upon the military establishment of the kingdom as one of their major issues: They considered military power exclusively in the hand of the monarch one of the

452 453

doubtful reputation because of the heterodoxy and dubious dealings of its members. Louise A. Breen, “Religious Radicalism in the Puritan Officer Corps: Heterodoxy, the Artillery Company, and Cultural Integration in Seventeenth-Century Boston,” New England Quarterly 68, no. 1 (1995). It used to be argued that the annual election day sermons to the Artillery Company played a major role in the run-up to the Revolution, but that notion has been disputed. Harold D. Mixon, “Boston's Artillery Election Sermons and the American Revolution,” Speech Monographs 34, no. 1 (1967). SCG 21 July 1757, p. 2. As early as 1698 the legislature of South Carolina was complaining that “the constables have been very remiss and negligent in keeping the watch in Charlestowne,” (An Act for Settling a Watch in Charles Town, and for Preventing of Fires (#162, 1698), in: StaL VII:7) charge that was frequently repeated. The enactment of laws to improve the quality of the watch does not seem to have a great influence, as their frequent repetition proves. See for example An Act for Settling a Watch in Charlestown, and for Preventing of Fires and Nusances [sic] in the Same [...] (#190, 1701), in: StaL VII:17; An Act for Keeping and Maintaining a Watch and Good Orders in Charles Town (#207, 1703), in: StaL VII:22; An Act for Setting a Watch in Charles Town (#282, 1709), in: StaL VII:54.

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greatest evils that could befall England. Thus, the idea of a professional army became anathema, while the armed population forming a citizen militia for the defense of the country was hailed as the great solution to all constitutional and military problems.454 In the eyes of the Commonwealthmen, the redeeming qualities of the militia and the armed populace were many. While professional forces bought and sold their loyalties, those of the militia, argued its proponents, would naturally and always lie with their native country, fighting for their estates and property. Thus, in the words of John Trenchard – whose version of the argument was one of the first, most powerful and most popular with later generations –, the militia would be the very embodiment of the English Constitution it defended: Now this [constitutional] Ballance can never be preserved but by an Union of the natural and artificial Strength of the Kingdom, that is, by making the Militia to consist of the same Persons as have the Property; or otherwise the Government is violent and against Nature, and cannot possibly continue, but the Constitution must either break the Army, or the Army will destroy the Constitution: for is universally true, that where-ever the Militia is, there is or will be the Government in a short time; and therefore the Institutors of this Gothick Ballance [...] made the Militia to consist of the same Parts as the Government, where the King was General, the Lords by virtue of their Castles and Honours, the great Commanders, and the Freeholders by their Tenures the Body of the Army; so that it was next to impossible for an Army thus constituted to act to the disadvantage of the Constitution, unless we could suppose them to be Felons de se.455

Quoting the ancient republics as examples to be emulated, Trenchard suggested that only those with a vested interest in the state should be allowed to fight for it: “Their Arms were never lodg’d in the hands of any who had not an Interest 454

455

On the genesis of the name ‘Commonwealthman,’ their ideas and influence see Caroline Robbins, The Eighteenth-Century Commonwealthman: Studies in the Transmission, Development and Circumstance of English Liberal Thought from the Restoration of Charles II until the War with the Thirteen Colonies (Cambridge, MA: Harvard University Press, 1961) 3-7. Lois Schwoerer has made the most comprehensive statement of the opposition professional armies faced in seventeenth-century England and, by implication, the virtues imputed to the militia. Lois G. Schwoerer, "No Standing Armies!": The Antiarmy Ideology in Seventeenth-Century England (Baltimore, MD: Johns Hopkins University Press, 1974). John Phillip Reid has argued that the dispute about the role of the army and the persistence of seventeenthcentury constitutional thought in America was at the center of the constitutional crisis that precipitated the American Revolution. Reid, In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution; Shy, Toward Lexington: The Role of the British Army in the Coming of the American Revolution has argued similarly. John Trenchard and Walter Moyle, An Argument, Shewing, That a Standing Army Is Inconsistent with a Free Government, and Absolutely Destructive to the Constitution of the English Monarchy (London: 1697; reprint, [Exeter]: Published by The Rota at the University of Exeter, 1971) 4. For that idea see also Cress, Citizens in Arms 7.

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in preserving the publick Peace, who fought pro aris & focis, and who thought themselves sufficiently paid by repelling Invaders, that they might with freedom return to their own Affairs.”456 Furthermore, the argument ran, the militia would provide a much cheaper defense than any standing army could, for there was no necessity to feed and clothe them at public expense during prolonged periods of peace and idleness.457 One of the perhaps most important arguments Trenchard and the radical Whigs made in favor of the militia, even though Trenchard himself touches it only very briefly and en passant, was that the militia would very successfully dilute the king’s power. With the militia the only military force available to him, the king would have to work through persuasion more than just by command. Otherwise, the loyalty of his troops might waver: “For the King’s Safety stands upon a Rock whilst it depends upon the solid Foundation of the Affections of the People, which is never to be shaken till ‘tis as evident as the Sun in the Firmament, that there is a formed Design to overthrow our Laws and Liberties.”458 While many of the Commonwealth ideas about the military were certainly utopian and their authors’ grasp of the history they used to support their ideas was not always firm, their influence was tremendous, particularly in the North American colonies. When, in December of 1757, a correspondent’s letter on the militia was published in the Boston Evening Post, the Commonwealth ancestry of the propounded ideas was more than striking. Citing biblical, Greek and Roman examples as well as such of the ‘gothic’ past in England obtained from Algernon Sidney’s writings, the author makes the case “that the Militia ought to consist of all Persons capable of bearing Arms, since every Person that receives Protection from a community, owes it Defence, and this is grounded upon the Principle of Self-Preservation.”459 Furthermore, the argument goes, [t]he whole Series of Sacred History [of the Old Testament] shows, that there were always as many Soldiers as there were Men able to fight. The same was the Case of the antient Republicks of Greece. All the Citizens that were capable of bearing Arms, were obliged to serve in the Defence of their Country. None but Citizens were allowed the Privilege of having Arms [...].460

456 457 458

459 460

Trenchard and Moyle, An Argument 7. Ibid., 23f. Ibid., 27. See also James Burgh, Political Disquisitions: Or, an Inquiry into Public Errors, Defects, and Abuses. Illustrated by, and Established Upon Facts and Remarks, Extracted from a Variety of Authors, Ancient and Modern (Philadelphia: Printed and sold by Robert Bell in Third-street; and William Woodhouse in Front-street, 1775 (=Evans 13851)) II:408. BEP 12 December 1757, p. 1. Ibid. The text ends rather abruptly and does not seem to be continued in the following issues. The prequel is in the BEP 21 November 1757, p. 1f. Edmund Morgan elucidates the myth of the “invincible yeoman” in the context of popular sovereignty. Morgan, Inventing the People 153-73.

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As, unfortunately, the text is not completely printed in the paper – probably having been conceived for serialized publication – it is uncertain where exactly the argument was going. Nonetheless, the argument in favor of a citizen militia is sufficiently clear from the extant portion. The publication, only a week later, of a parody upon the neglect of the militia in Massachusetts points in the very same direction. The supposed “political maxims” satirized the neglect of the militia by turning on their head the widely known Commonwealth ideas on that topic: The People of the Country ought not to be instructed in Military Exercise and discipline, for this supposes there may be Occasion for the Use of it; this supposes some Danger; and this tends to introduce unmanly Fear, and may issue in downright Slavery. The present Regulation of the Militia of this Province is perfect, and there can want no Amendment. The Freedom of Countries hath been frequently destroyed by large Standing Armies of Mercenaries; therefore it is dangerous to learn the Freemen of a Country the proper Use of Arms, lest instead of defending, they should conspire to destroy their own Liberties. When a Country is invaded, the Inhabitants will fight pro Aris & Focis, and their Spirit will be sufficient for their Defence, without the Assistance of Order and Discipline.461

Seemingly, the idea that the militia should have an important place in the military preparations of the state had great currency in Massachusetts. In South Carolina, the situation seems to have been quite different. Apart from the permanent complaints about the decayed state of the militia, failure to enforce the patrol laws and the lack of military preparedness, very little seems to have been written about the militia there. While some gentlemen maintained a military club in Charleston and the militia regiments fulfilled social functions, very little enthusiasm seems to have been directed at the militia as a worthwhile military option. By the early 1770s, the threat of the standing army was permanently before the eyes of the inhabitants of Massachusetts, reinforcing inherited ideas. Each year, ceremonies were held in Boston “on the dangerous Tendency of Standing Armies to the Rights of Civil Society, and in Commemoration of the horrid Massacre perpetrated on the Evening of the 5th of March 1770.”462 Only a few years after that incident, the Commonwealth opposition to standing armies and the encomia of the militia reappeared in a new forceful statement in James Burgh’s Political Disquisitions. Published in London in 1774 and reprinted in Philadelphia only a year later, it was one of the most influential restatements of radical Whig ideas in North America.463 461 462 463

BEP 19 December 1757, Supplement, p. 2 Original emphasis. BEP 9 March 1772, p. 3. James Burgh, Political Disquisitions; or, an Enquiry into Public Errors, Defects, and Abuses (London: E. and C. Dilly, 1774); Burgh, Political Disquisitions (Philadelphia). The third

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Burgh dedicated a considerable part of his second volume to the army-militia issue, arguing that “[i]n a survey of public abuses, it would be unpardonable to overlook that of a standing army in times of peace, one of the most hurtful, and most dangerous of abuses.”464 Instead, a militia would be best to defend Britain, or, for that matter, any other nation: Nothing will make a nation so unconquerable as a militia, or every man’s being trained to arms. For every Briton having in him by birth the principal part of a soldier, I mean the heart; will want but little training beyond what he will have as a militia-man, to make him a complete soldier. A standing army, though numerous, might be routed in one engagement, if an engagement should happen in consequence of a French invasion. Whereas the militia of Britain would be a million of men; which would render a descent from France an operation of war not to be thought of.465

After 1770, many of the citizens of North America seem largely to have agreed with James Burgh and his idea of the value of the militia and the dangers attending a standing army. In the years immediately preceding the revolution there was an upsurge of interest in the militia in Massachusetts, yet apathy persisted in South Carolina. The recent experience with British professional troops in Boston – chief among them what came to be called the Boston Massacre – had resurrected the historic apprehensions of standing armies and concomitantly revived the belief in the truth of the Commonwealthmen’s statements about the militia.466 In an essay warning of the consequences of letting the militia fall into neglect, ‘A Military Countryman’ exhorted his fellow citizens to keep the militia alive: I know the militia cannot be made perfect, but something might be done which would be time well spent. Oh! ye Fathers, advise your sons to esteem the art military and not to treat it with so much neglect as is prevalent in many places, tell them that it will be an honor to them to behave like good soldiers, that it will be a glory to this land, and a defence on that glory.467

At the same time, it was becoming more important to show the difference in kind between the standing army and the militia: “On Tuesday and Wednesday

464 465 466

467

volume of the American edition was prefaced with a “List of Encouragers,” i.e. subscribers to the publication, containing pretty much the Who is Who of American politics at the time. This list allows an interesting insight into just how influential Burgh’s book really was among the political elite. Ibid., II:341. Ibid., II:399. Lawrence Delbert Cress, “Radical Whiggery and the Role of the Military: Ideological Roots of the American Revolutionary Militia,” Journal of the History of Ideas 40, no. 1 (1979): 56. For an in-depth treatment of the ‘massacre’ see Zobel, The Boston Massacre. BEP 11 June 1770, p. 1.

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last four Companies of Militia trained at Salem: – Their Behavior proved that Men may be disciplined without becoming Regulars, when they have Officers of Spirit, Capacity and Assiduity to instruct them.”468 Military spirit among the militiamen was being celebrated well before the image of the Minutemen rushing to the defense of their civil liberties began to dominate the picture.469 Nonetheless, it was during the Revolution itself that the myth of the citizen militia was brought to perfection. In the initial stages of the war, the militia and volunteer troops with short enlistment periods bore the brunt of the fighting. Yet, the problems that had troubled the militia as a fighting force during the previous decades asserted themselves: On the offensive, away from their homes, the militia had often not served at all, and with a lackluster record whenever they did. It was in the immediate defense of their homes and families that the militia excelled and it was this situation that had spurred them at Lexington, Concord and Bunker Hill. Thus, the burden of fighting the British shifted more and more to the professional, standing troops of the Continental Army, occasionally supplemented by local militia. Nonetheless, the militia was of great importance for the war effort, as it inhibited British freedom of movement even when the Continental Army was far away: “Wherever the King’s forces point,” complained British General John Burgoyne, “militia to the amount of three or four thousand assemble in twenty-four hours.”470 Thus, even though the militia’s record in set-piece battles was less than perfect, it still played an important role in the ultimate American victory. Additionally, the emotional and ideological attachment of many politicians and even military leaders to the militia had remained intact during the war. Early in the war, General Charles Lee had proposed a system under which the militia would fight the war, resting his argument in favor of the militia upon classical Whig positions.471 Indeed, as soon as the Continental Congress took command of the military operations, the argument in favor of the militia regained importance, as congressional control of the militia undercut the desired local control just as much as British control had before: Thus, even before the Congress had formally obtained the constitutional authority to maintain military forces – an authority not formally conferred before the ratification of the Articles of Confederation in 1781 – the control of the militia and the army had again taken on a constitutional flavor.472 When, just before the end of the war, reports surfaced that a mutiny of the army against the Continental Congress was afoot, this certainly did nothing to dispel the fears of standing armies and consequently 468 469 470 471 472

BEP 28 May 1770, p. 3. For examples of the “military sprit” being celebrated in the newspapers see BEP 19 October 1772, p. 2; SCAGG 2 June 1775, p. 3; SCAGG 1 September 1775, p. 2; Quoted in Don Higginbotham, The War of American Independence: Military Attitudes, Policies, and Practice, 1763-1789 (New York: Macmillan, 1971) 193. Cress, Citizens in Arms 54ff. Ibid., 60-66.

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revived the popular belief that the militia was the safer instrument of military preparedness.473 In the Confederation years, the militia was very much at the center of the constitutional struggle between those who favored a stronger national government and those who advocated maintaining state sovereignty as envisioned under the Articles of Confederation. In this debate, the military role of the militia and its role as a constitutional and ideological icon intersected. When the war was drawing to a close, the American military leadership considered which arrangements to make for future military preparedness. George Washington, still commander-in-chief of the Continental Army, put together his ‘Sentiments on a Peace Establishment’ in the spring of 1783. “Altho’ a large standing Army in time of Peace hath ever been considered dangerous to the liberties of a Country,” argued Washington, “yet a few Troops, under certain circumstances, are not only safe but indispensably necessary.”474 But even Washington was aware that in the prevailing political climate and given the influential image of the militia as the victor of the war, a major professional army would be hard to obtain from Congress. Instead, Washington proposed strengthening the militia, “this great Bulwark of our Liberties and independence,” and relying primarily on that force.475 Thus, at the same time that Washington was proposing a standing army and paying lip service to the value of the militia, large segments of the population and many influential politicians – most noteworthy perhaps Aedanus Burke of South Carolina – continued to champion the more traditional view that military preparations should primarily rest upon the militia. Repeating all the traditional Whig arguments, now bolstered with the conviction that the militia had actually won the war, they opposed more military power in the hands of the central government.476 The militia and the attendant ‘military spirit’ would be the best and safest defense of the country. The preamble of the Constitutional Articles of the Independent Company of Cadets summed up the position very succinctly: In order that the inhabitants of a country may become the most efficient, as they are the most natural Defenders and Protectors of its Rights and Independence, the profession of 473

474

475 476

On this episode, generally known as the Newburgh Conspiracy, see Richard H. Kohn, Eagle and Sword: The Federalists and the Creation of the Military Establishment in America, 17831802 (New York: Free Press, 1975) chapter 2. Sentiments on a Peace Establishment, Enclosed in George Washington to Alexander Hamilton, 2 May 1783, in: John Clement Fitzpatrick and David Maydole Matteson, eds., The Writings of George Washington from the Original Manuscript Sources, 1745-1799, 39 vols. (Washington, DC: U.S. Government Printing Office, 1931) XXVI:375. Original emphasis. Ibid., XXVI:387. Cress, Citizens in Arms chapter 5; Jensen, The New Nation 69-82, 261ff; Kohn, Eagle and Sword 12f; Jackson Turner Main, The Antifederalists: Critics of the Constitution, 1781-1788 (New York: Norton, 1974) 106ff.

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Arms, and a knowledge of the Art of War, have always been deemed essential and indispensible [sic]. It is also established opinion, sanctioned by experience, that a well regulated and disciplined Militia, is the most necessary and important as well as the least dangerous means of national defence and security. It is the most important and safe, because the best calculated to hold the military strength of the country in subordination to the Authority, and render it promotive of the purposes of Civil Government – Hence it results as a political maxim, that the Arrangement and Organization of the Citizens into Military Corps, should become a fundamental principle in every Free Constitution of Government, and a primary object in its administration; and that the martial exercises and discipline of the Soldier, should rank high among the essential and indispensable Duties as well as Rights of the Citizen.477

Hence, after the Revolution, the fervor with which the militia was defended by its supporters remained, even though its military usefulness continued to decline. Thus, the importance of the militia in eighteenth-century America was manifold and lay not primarily in its role as a military force, even though it fulfilled that function as well. The militia was, even in colonies and states where it was defunct as a military organization, of considerable importance as a social organization. Militia training days were times of socializing that often resembled a fair more than a serious military exercise. Furthermore, the militia fulfilled important police duties. Especially in the southern colonies and states, the militia maintained a slave patrol. Whenever the patrol failed and an actual uprising occurred, the militia would be called to quell any such slave rebellions. Interestingly, these were for the most part the only moments at which the South Carolina militia functioned. The exclusively male character of the militia hints at another important function of the militia: Militia service and membership were both a duty and a privilege that was limited to free citizens of the respective colonies and states. In keeping with the tenets of Commonwealth ideas about the military, generally only those who were perceived as holding a stake in society – that is: owning property – or being potentially able to hold that stake were admitted and required to serve in defending the state. This logic excluded women from any open participation in the militia, as they were very limited in holding property and in exercising other rights associated with citizenship. More importantly, however, males defined their own role by their armed service: Since women did not defend themselves and the state, but rather needed to be defended, they could not participate on an even footing in running the state. Thus, military service worked to prop up traditional gender roles, in which males dominated the public sphere and females remained, in many respects, disadvantaged.

477

The Constitutional Articles of the Independent Company of Cadets. Boston, MA: Printed by John Russell, 1798 (=Evans 49571), 3.

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Especially blacks in the South were similarly relegated. While Massachusetts may not have been explicit in excluding free blacks, in South Carolina the purpose of the militia was quite explicitly to keep the population of black slaves in submission. There, membership in the militia carried the additional connotation of racial superiority of whites over their slaves. Under these circumstances, a membership of blacks was largely inconceivable. The fact that the militia acts still considered arming ‘trusted’ slaves in situations of grave danger makes amply visible the strain under which the white population of South Carolina found itself where it was in the numerical minority. Perhaps the most important function of the militia was ideological: Since the days of the Glorious Revolution, the British opposition movement had maintained that a militia was much more advisable a military establishment than the standing army that the surrounding nations maintained. Americans very generally bought that argument and accepted its premises: A militia guaranteed local control over the military, while a professional army gave too much power to the government. The unshakeable belief in the superiority of the militia lent great credence to the political argument: If the militia was not only as good militarily as the standing army, but at the same time cheaper and less dangerous to the liberty of the people, there could really be no reason not to support it.

4.3. Crime and Self-Defense So far, the focus of this chapter has been on usages of guns that generally carried positive connotations with inhabitants of Massachusetts and South Carolina. However, the use of firearms in the commission of crime is not a recent development. In Arming America, Michael Bellesiles contended that white colonial Americans rarely “assaulted other whites in the colonies and almost never killed one another.”478 Yet, even in the eighteenth century, highwaymen, burglars and other criminals relied upon pistols and muskets to overpower their victims: Last Wednesday Evening, just after 7 o’Clock, as a man was going over Boston neck, he was stopped by a Fellow, who presenting a pistol to his Breast, bid him deliver, swearing he would send a Brace of Balls thro’ him instantly if he refused; but the Man replying, he had but 3 Pistareens about him, he ordered him to go about his Business, and then ran off --- doubtless apprehending a Pursuit, as there was a Number of People hastening towards them. He was a little Fellow, had a surtout Coat, wore his Hat {flop’d} before, and had a Pair of Pistols.479

478 479

Bellesiles, Arming America 81. BEP 21 January 1765, p. 2.

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In other cases, robbers did not even attempt to make conversation or to pull off their deed without bloodshed, but instead fired immediately, as the Boston Evening Post reported: We are informed, that on Saturday the 19th Instant two Gentlemen coming from Rhode Island, supposed to have large Sums of Money with them, were attacked upon the Road near Hunt’s, by a man who jump’d out of the Bushes and snap’d a Pistol at them twice, but it happen’d to miss Fire; upon which they made the best of their Way.480

Robbers existed just as well in South Carolina and they were also armed. Under the headline “A Robbery,” one John Dear reported that [w]hereas two of my negro boys were stopped this evening about sun-set, on their way to town, a little below the Quarter House, by two tall, slim white men, with slouch’d white hats, and new shoe boots; had on blue great coats buttoned over their shoulders, with each a brass barrell’d pistol, and the following horses taken from them [...].481

Dear offered a reward of ten guineas for the retrieval of the horses and an additional 20 for the arrest of the robbers. Despite such private attempts to curb robberies, people were opposed by armed rowdies even in downtown Charleston. “On Saturday forenoon,” stated the City Gazette on one such occasion, Major A. A. Muller, a member of the house of representatives [sic], was accosted at the corner of a street, by Mr. John Christian Smith, in very scurrilous language, and, without receiving any answer, fired off a gun pointed at his breast. The ball only grazed the abdomen slightly, so that the wound is in a fair way of being soon cured. Mr. Smith rode off, and has not since been heard of.482

Yet, robberies were not the only crimes in the commission of which guns were used from time to time. The Hampshire Gazette reported a “most shocking Murder” committed on “[o]ne Junion a Frenchman [who] was found dead in his Bed, with his head shot in pieces” in 1790, of Virginians attempting to settle a quarrel over land rights by a shoot-out, a debtor resisting an executor with his gun and accidentally shooting his own wife instead, as well as criminals resisting arrest with their firearms.483

480 481 482 483

BEP 28 July 1740, p. 2. SCGGA 24 December 1784, p. 3. CMP/CG 19 January 1789, p. 2. Hampshire Gazette 30 March 1791, p. 3; Hampshire Gazette 5 August 1789, p. 3; Berkshire Chronicle 6 November 1788, p. 3; Western Star 6 July 1790, p. 3. The notice about the arrest of the murderer Hadlock and his armed resistance is repeated largely verbatim in the American Herald and Washington Gazette of 18 October 1790, p. 3.

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Another issue of guns being used criminally were people going on rampages, as happened occasionally when people either took their private quarrels outside or vented their discontent about something by firing in the streets. In 1749, a Boston youth was shot dead in one such occurrence: Friday last Robert Hunt, a noted Lime {seller}, having in his Rage made a Pass with a drawn Sword at a Man with whom he had some Dispute, a Number of People gather’d about his House, which offended the said Hunt, and having loaded a Pistol, he discharged it among them, and wounded a Boy in the Head in so dangerous a Manner, that ‘tis feared he cannot recover. The Fellow is committed to Gaol.484

Similarly, the printers of the Boston Evening Post reported on another occasion that a man did “designedly and maliciously, as appeared to several By standers [sic], discharge his Musket against the Legs of a Gentleman then passing thro’ the Town House [...],” offering a reward for information about the shooter’s identity.485 As the latter case of private investigation suggests, colonial and state authorities had great troubles in preventing and combating crime in general. With no police force in existence, private action and hue and cry were the only means available. Occasionally, in the most blatant and brutal cases, authorities would issue rewards for the capture of robbers. In the South Carolina case of John Cox, Governor John Bull offered a reward of 50 pounds Sterling “[i]n order that the Perpetrators of so audacious a Felony may be brought to condign Punishment [...].”486 Those who attempted to pursue and arrest such offenders often put their own lives at risk. Then as today, criminals also shot sheriffs and their deputies in resisting their arrest.487 In such a situation, it is hardly surprising that many inhabitants of the colonies would have relied upon themselves rather that state authority to protect themselves and their property from criminals. Self-defense was an important precautionary measure against crime. Accordingly, people used their arms to oppose criminals and protect their property. These preparations proved the undoing of one “Saunders, a horse thief, tried and convicted once in this city [of 484 485

486

487

BEP 10 April 1749, p. 1f. The victim died later and Hunt committed suicide in prison. BEP 17 April 1749, p. 2. BEP Supplement 26 September 1768, p. 2. For another such occurrence see Anne Rowe Cunningham and Edward Lillie Pierce, “Letters and Diary of John Rowe: Boston Merchant, 1759-1762, 1764-1779,” 1903, 201. SCAGG 10 March 1775 p. 3. See also William Dummer, A Proclamation for Apprehending Henry Phillips. Boston, MA: Printed by B. Green, 1728 (=Evans 39893); Spencer Phips, A Proclamation for Apprehending the Murderers of William Race. Boston, MA: Printed by John Draper, 1755 (=Evans 40778). BEP 21 March 1757, p. 2; BEP 26 April 1773, p. 2. Both cases are reported from New Hampshire. See also Western Star 26 October 1790, p. 3; American Herald and Washington Gazette 18 October 1790, p. 3; SCG 13 June 1768, p. 3.

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Charleston], but pardoned conditionally that he should quit the state, [who] was lately shot at Four Holes, by a planter, who detected him in the act of riding away with a valuable horse.”488 Vigilante justice occasionally supplanted the established legal systems. In one such situation, even with a court warrant, the aggrieved party still had to go out to find the thief of his property: One Ballard was accused of stealing pigs belonging to Mr. Gabriel Fridig, who procured a warrant against him, but he absconded for three days, to elude the pursuit. It was therefore agreed to visit his house in the night, and there he was; being asked to surrender, he refused – then Mr. Riley, one of the party, fired a gun through a hole in the wall, directed at the cieling [sic] to freighten [sic] him; still he was obstinate – after some expostulation, the gun was discharged a second time, and the contents lodged in Ballard’s side, who instantly expired.489

Thus, in the attempt to execute a legal warrant and to bring a thief to justice, the victim of the theft became himself a criminal in exceeding the bounds of the law. In the case of Ballard, “[a] coroner’s inquest being held upon the body, returned a verdict – wilful murder. – Some of the persons who were present have been committed to Orangeburgh gaol.”490 This situation makes abundantly clear one of the major problems of law enforcement by means of an armed population: The differentiation between legitimate violence, in which armed citizens fulfilled the legally defined role of the posse comitatus, and illegal vigilantism was a permanent problem.491 Some issues related to guns and slavery also fell within the realm of criminal behavior. This was an issue that was, between the two states under investigation here, largely limited to South Carolina. As we have seen above, keeping the unfree population in submission was an important objective of organized gun ownership in that colony. This situation raised some very special issues about 488 489 490 491

CMP/CG 6 May 1789, p. 2. CMP/CG 18 May 1790, p. 2. Ibid. George Gibson alludes to the problem of differentiating between extralegal action by what he calls regulators and vigilantes and the support of legal, constituted authority exercised by vigilance and pursuing societies, as does Richard M. Brown, The South Carolina Regulators 1; George H. Gibson, “ “Stop, Thief!”: Constitution and Minutes of the Friends of Justice, 1786-1794,” Delaware History 11, no. 2 (1964): 95. Where public law enforcement existed, yet was unable to cope with crime, the latter were often formed in order to support the operation of the law. Pauline Maier has written explicitly about the interesting situation where – more or less – a mob would “naturally assume the manner of a lawful institution” in the form of the posse comitatus. In that situation, it would have been very difficult to differentiate between a legal posse and an illegal mob. Pauline Maier, “Popular Uprisings and Civil Authority in Eighteenth-Century America,” William and Mary Quarterly 27, no. 1 (1970): 19ff, quotation at 19; Other than Maier’s article, the historical significance of the posse comitatus does not seem to have been addressed by scholars.

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what would be considered criminal behavior in the use and possession of firearms. Just as the state organized the white population to be armed in order to keep the entire slave population in subjection, whites individually did the same to keep their own slaves subdued. They intended to obtain this effect in two different ways, namely by being armed themselves; by giving themselves wide latitude over the use of firearms against slaves; by banning gun possession and use for their slaves, and by punishing infractions and resistance savagely. Legally, slaves’ access to firearms was regulated in the Slave Act of 1712, which prohibited that any “negro or slave shall carry out of the limits of his master’s plantation any sort of gun or fire arms, without his master, or some other white person by his order, is present with him, or without a certificate from his master, mistress or overseer, for the same [...].”492 Thus, slaves could not own any arms by themselves, yet could be licensed to use them whenever necessity or convenience of the white population required. The situation changed somewhat after the passage of a new slave act in 1740. Enacted as a reaction to the slave uprising at Stono in 1739, the act placed tighter limits upon slaves. More specifically, gun use by slaves was more strictly circumscribed, limiting further the occasions upon which slaves might be entrusted with guns. The new law required slaves to have a ticket or license, in writing, from his master, mistress or overseer, to hunt and kill game, cattle, or mischievous birds, or beasts of prey [...] or unless there be some white person of the age of sixteen years or upwards, in the company of the slave, when he is hunting or shooting, or that such slave be actually carrying his master’s arms to or from his master’s plantation [...].493

In the further provisions, it becomes clear how much this law was a reaction to the rebellion the colony had witnessed nine months earlier. The act specifically addressed the fact that slaves had used the weekend when the white population was in church and less alert to the threat of a slave insurrection. The law provided “that no negro or other slave shall have liberty to carry any gun, cutlass, pistol or other weapon, abroad from home, at any time between Saturday evening after sun-set, and Monday morning before sun-rise, notwithstanding a license for so doing” and instructed that “any person [who] shall find any slave using or carrying fire arms, or other offensive weapons, contrary to the true intention of this Act, every such person may lawfully seize and take away such fire arms or offensive weapons.”494 Such limitations were intended to compli492 493 494

An Act for the Better Ordering and Governing of Negroes and Slaves (#314, 1712), in: StaL VII: 353f An Act for the Better Ordering and Governing Negroes and other Slaves in this Province (#670, 1740), in: StaL VII:404. Ibid. See also page 410 for further limitations.

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cate slaves’ access to arms and the possibility of using them against their masters. At the same time, it will be remembered, whites made sure that they themselves were armed and generally prepared to use their guns against recalcitrant and resistant slaves. The use of guns to overpower slaves, break their resistance or stop their flight was a common occurrence. When South Carolina’s Governor Roger Moore attempted to apprehend a runaway slave, muskets were naturally present: “When he [the runaway] was surrounded,” reported Charleston’s South Carolina Gazette, he went up stairs over the Kitchin [sic], a white man and one of His Excellency’s Negroes followed him each with a Musket loaded with Swan-shot, and he jumping down out of the Window received the Fire in the small of the Back, notwithstanding which he ran near a Quarter of a Mile, but growing faint, he fell down, was taken, and brought to Prison in a Cart, where he now lies, in order to be tried in a few Days.495

It is noteworthy that a trial was still scheduled here, as very commonly masters (and white men generally) had very wide latitude in breaking the resistance of and punishing slaves without recourse to judicial proceedings. This latitude included the possibility of legally inflicting death without having to fear judicial repercussions: One Day last Week, Mr. Charles Jones pursuing a Run-away Negro, who had robb’d him, and coming up with the Negro, he resisted and fought him; and he struck the Lock of his Musket into the Negro’s scull and kill’d him. He went and told a Justice what he had done, who ordered him to cut his Head off, fix it on a Pole, and set it up in a Cross Road; which was done accordingly near Ashley Ferry.496

Even when crimes committed by slaves did go to trial, punishments were savage. Death at the gallows, whipping and mutilations were commonly inflicted punishments. If a slave killed his or her master, no compassion could be expected. Throughout the Revolution and at least as late as 1790, slaves could be burned alive: “It was not that notorious Felon Robert Prine, that lately killed Capt. Lazarus Brown. He was shot by one of his own Slaves, who has since been convicted and burnt alive,” reported the press of one case in 1772.497 Even without resorting to the formal legal process, masters had always enjoyed considerable latitude in punishing their slaves. The 1712 Slave Act specifically stated that accidental killing or mutilating of slaves was not to be pe495 496 497

SCG 16 March 1733/34, p. 2. SCG 29 January 1731/32, p. 4. SCG 30 July 1772, p. 3. The Charleston City Gazette of 18 May 1790 reported three slaves who had shot their master convicted to be “burned alive [for the shooter]; an accomplice to be hanged, and the third had his ears cropt, accompanied with a sound whipping.” CMP/CG 18 May 1790, p. 2.

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nalized. Even in cases where slaves were killed because of “wantonness, or only of bloody-mindedness, or cruel intention,” the killer was to be punished by a fine and by reimbursing the owner the value of the slave. Thus, the power of masters over their slaves’ life and death was virtually limitless, economic interest in the value of the slave being the only incentive to use restraint in treating slaves. 498 The outlook upon punishing slaves changed somewhat after the Stono Rebellion of 1739. Even though the rebellion was brutally crushed and those (suspected) participants that survived the initial slaughter were tried and executed, there seems to have been a realization that suppression alone might not bring the expected security from further uprisings.499 The new slave act of 1740, accordingly, listed as its purpose not only “that the slave may be kept in due subjection and obedience,” but also that “the owners and other persons having the care and government of slaves may be restrained from exercising too great rigour and cruelty over them.” It was by these means combined, the act’s preamble reasoned “that the public peace of this Province may be preserved.”500 In addition to these declarations, the act contained some actual provisions to protect slaves better than had been the case before. It mandated a penalty of 498 499

An Act for the Better Ordering and Governing of Negroes and Slaves (#314, 1712), in: StaL VII:363. The killings of rebellious slaves at Stono were justified and legalized ex post when the provincial assembly passed a new slave act in 1740. In the closing paragraphs of the act, the legislature provided security for those who had crushed the rebellion: And whereas, several negroes did lately rise in rebellion, and did commit many barbarous murders at Stono and other parts adjacent thereto; and whereas, in suppressing the said rebels, several of them were killed and others taken alive and executed; and as the exigence and danger the inhabitants at that time were in and exposed to, would not admit of the formality of a legal trial of such rebellious negroes, but for their own security, the said inhabitants were obliged to put such negroes to immediate death; to prevent, therefore, any person or persons being questioned for any matter or thing done in the suppression or execution of the said rebellious negroes, as also any litigious suit, action or prosecution that may be brought, sued or prosecuted or commenced against such person or persons for or concerning the same; be it enacted by the authority aforesaid, That all and every act, matter and thing, had, done, committed and executed, in and about the suppression and putting all and every the said negro and negroes to death, is and are hereby declared lawful, to all intents and purposes whatsoever, as fully and amply as if such rebellious negroes had undergone a formal trial and condemnation, notwithstanding any want of form or omission whatever in the trial of such negroes; any law, usage or custom to the contrary therof in any wise notwithstanding.

500

An Act for the Better Ordering and Governing Negroes and other Slaves in this Province (#670, 1740), in: StaL VII:416f. Ibid., 397.

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forty shillings if a slave “shall be beaten, bruised, maimed by any person or persons not having sufficient cause or lawful authority for so doing [...].”501 Since this clause also allowed damages to the owner of the beaten slave, the welfare of the slave may not have been at the center of this provision. However, the same law also contained less ambiguous provisions. Stating that “whereas, cruelty is not only highly unbecoming those who profess themselves christians, but is odious of all men who have any sense of virtue or humanity; therefore, to restrain and prevent barbarity being exercised towards slaves” the law enacted penalties for persons who “shall wilfully murder” or “on a sudden heat or passion, or by undue correction, kill his own slave, or the slave of any other person.” Stiff fines were levied for infractions and workhouse terms and hard labor required for non-payment.502 Despite the declared intentions, the act was not overly successful in its actual operation. When the Charleston Morning Post reported of the killing of a slave by an overseer in 1786, demanding harsher punishments for offenders, it also stated that such murders happened not infrequently: Last Monday evening was brought to this city, James Denham, overseer of Samuel Prioleau, Esq.; and committed to prison, for killing a valuable negro man the property of Mr. Prioleau. Instead of chastising him according to the usual mode, he maliciously loaded a musket with a ball and seven swan shot, and lodged the whole contents in the negro’s breast, who instantly expired. It is hoped this, with other instances of the like nature not long since happened of cruelty to negroes in overseers, will induce the legislature at their next meeting, to pass a law, making it death to any person willfully killing a negro, for it is evident as the law now stands the planter is in danger of being greatly injured.503

Again, however, the last sentence of the report underlines that the well-being of the slave was not the primary motive behind the act: Abuses were only to be controlled because they seemed to fuel slave insurrection and the death of a slave was a financial loss to his or her owner. Thus, while the motives may not have been the most philanthropic, the act may have caused advances – albeit modest – in limiting the most flagrant abuses committed against slaves. The act did nothing, however, to limit the centrality of firearms in the relationship between slaves and masters, but rather heightened their importance: By making them ubiquitous among free whites and banning them among black slaves, guns became symbols of the oppression in the institution of slavery. A last and probably minor issue in criminalized use of firearms was the area of suicide. While certainly not all suicides were committed using guns, it is 501 502 503

Ibid., 399. Ibid., 410f. CMP 2 November 1786, p. 2. In his trial, Denham pleaded self-defense and was acquitted. CMP 7 June 1787, p. 2.

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nonetheless interesting to note that guns, even though much less lethal then than now, were already being used to end one’s life. When the Pittsfield Western Star reported this case from Newburyport, it was not the first time that someone had purposely shot himself dead: “On Tuesday of last week, Mr. Bradish, the Gaoler at Cambridge put an end to his existence, by discharging the contents of a loaded musquet into his head, which left him a horrid spectacle to behold. – His reasons for committing the horrid act are not known.”504 The causes of the suicides were just as manifold as they could possibly ever have been. Family crises, being “disordered in [...one’s] Mind,” and slighted love could all be at the basis of self-destruction.505 These reasons did not only apply to whites taking their lives. Suicide existed among both the native population in contact with the European colonizers as well as the unfree slave population. For fear of being separated by a sale, two Boston slaves resolved to put an End to their lives, rather than be parted; and accordingly, at about seven o’Clock, (the Wench being at the House of her Countryman) they went up Stairs into the Garret, where the Fellow, as is supposed, cut the Wench’s Throat with a Razor, and then shot himself with a Gun prepar’d for the Purpose. They were both found lying upon the Bed, she with her Head cut almost off, and he with his Head shot all to pieces.506

The most interesting aspect of these reports may not be the fact that suicides were committed at all, but rather the vivid language employed in them. This language is strikingly different from that usually used in newspapers that abounded with delicately-worded circumlocutions. Furthermore, it is interesting to note that such reports seem to be concentrated in Massachusetts.507 It is worth speculating that this may have to do with the fact Massachusetts had been founded as a religious settlement. In that colony, religious convictions and precepts held sway much more strongly and much longer than in South Carolina 504 505

506

507

Western Star 4 May 1790, p. 3. The quote is form the BEP 24 January 1743, p. 4. Similarly, see BEP 3 September 1744, p. 1; BEP 22 July 1751, p. 1. For suicides arising out of family crises, see BEP 5 July 1736, p. 1f, in which Charles Lowndes of South Carolina is reported to have shot himself for the turn his marriage and fortune had taken. For details see Carl J. Vipperman, “The Brief and Tragic Career of Charles Lowndes,” South Carolina Historical Magazine 70, no. 4 (1969). For a case of slighted or ignored love see BEP 16 October 1758, p. 3. BEP 8 December 1746, p. 2. Another suicide of a slave is reported in the BEP of 6 November 1758, p. 3, that of a Native American with family troubles in the Hampshire Gazette of 27 September 1786, p. 2. I have found only a single instance reported in South Carolina, namely the case of a Indian shooting himself, who precipitated – his tribesmen believing him murdered – a crisis in the colony’s relations to the native population. SCG 7 July 1733, p. 3f. However, there is another report of a South Carolina suicide in the BEP 5 July 1736, p. 1f. See also footnote 124 above.

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and they also shaped criminal legislation more visibly. With suicide strictly proscribed by the Christian religion, it is hardly surprising that such a blatant violation should find public interest. Thus, the use of extremely graphic language may have served as part of a moral verdict rendered upon the perpetrators.508 In addition to the vivid language to pass a moral judgment, more concrete sentences were also reached, as is obvious in the following example: On Wednesday last a melancholy catastrophe happened in this town; a man by the name of Henry Trescot, in the eighty-fourth year of his age, put an end to his existence in a very shocking manner. It appeared by the evidence that was produced before the Coroner’s Inquest, that he was a man of violent passions and extravagant ideas: having put a very large charge in the pistol, he placed the muzzle in his mouth, and set fire to the powder with a lighted pipe of tobacco; the explosion blew off the front part of his face, and scattered the brains to a considerable distance; his skull was in small pieces, near ten feet from the place where he was found, which was on fort hill. The Coroner’s Inquest brought in their verdict – That he was guilty of suicide.509

Here, indeed, a criminal sentence is returned even after the death of the victim, and Massachusetts law required and prescribed a punishment for suicides, as this 1749 case – in which the suicide was not committed with a gun – illustrates: “The Jury of Inquest brought in their Verdict Self-Murder, and in the Afternoon his Carcass was carried in a Cart to the [Boston] Neck and buried near the Gallows, having a Stake drove thro’ it, according to Law.”510 Not only was the body of a self-murderer denied the customary Christian burial, but it was also mutilated to stigmatize it for eternity.

4.4. Duels Another situation in which gun use was not universally considered legal was the custom of the duel. As Joanne Freeman has shown in Affairs of Honor, duels were of considerable importance in early American national politics. The fusion 508

509 510

Puritans saw suicide as turning away from God, renouncing salvation and covenanting instead with Satan. Accordingly, they reserved a punishment more infamous even than for murder for the perpetrators. Howard I. Kushner, Self-Destruction in the Promised Land: A Psychocultural Biology of American Suicide (New Brunswick, NJ: Rutgers University Press, 1989) chapter 1, especially pages 21-27. The literature is very sparse on the cultural import of suicide. Richard J. Bell, “Do Not Dispair: Suicide in the Archives,” CommonPlace: The Interactive Journal of Early American Life 4, no. 4 (2004) is a start, but the dissertation mentioned there was not available as of this writing. Western Star 6 July 1790, p. 3. Original emphasis. The same is reported in the Hampshire Gazette of 30 June 1790, p. 3. BEP 17 April 1749, p. 2. Original emphasis.

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of personal honor and political clout in an embattled social aristocracy led to a proliferation of duels since every attack upon a political opponent also had the potential to impugn the opponent’s honor. “It would be hard to overstate the importance of personal honor to an eighteenth-century gentleman, let alone to a besieged leader whose status was under attack,” argued Freeman. Honor was the core of a man’s identity, his sense of self, his manhood. A man without honor was no man at all. Honor was also entirely other-directed, determined before the eyes of the world; it did not exist unless bestowed by others. Indeed, a man of honor was defined by the respect that he received in public.511

Contemporaries of the eighteenth century would have agreed that honor was a central category in civil society: It is opinion, that tormentor of the wise and the ignorant, that has exalted the appearance of virtue above virtue itself. Hence the esteem of men becomes not only useful, but necessary, to every one, to prevent his sinking below the common level. The ambitious man grasps at it, as being necessary to his designs; the vain man sues for it, as a testimony of his merit; the honest man demands it, as his due; and most men consider it as necessary to their existence.512

The most troubling aspect for a gentleman must have been the fact that the law offered but little recourse for somebody insulted in his honor: In vain have the laws endeavoured to abolish this custom, by punishing the offenders with death. A man of honour, deprived of the esteem of others, foresees that he must be reduced, either to a solitary existence, insupportable to a social creature, or become the object of perpetual insult; considerations sufficient to overcome the fear of death.513

Accordingly, a man of honor had to go to extreme lengths in order to defend his reputation and a duel was one means of doing so, but it “was a weapon of extremes.”514 A man’s honor could be slighted in a number of ways, but impugning, for example, another gentleman’s courage or even his status as a gentleman was dangerous terrain. By these standards, what Richard Dobbs Spaight wrote to fellow congressman David Howell was a sure-fire way to incite a duel:

511 512 513 514

Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven, CT: Yale University Press, 2001) xiv. Cesare Beccaria, An Essay on Crimes and Punishments (Charleston, SC: Bruce, 1777 (=Evans 43224)) 20. Ibid., 21. See also Burgh, Political Disquisitions (Philadelphia) III:120f. Freeman, Affairs of Honor xxi.

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I recd. yours in answer to mine of this date, it convinces of two things, first that you are a Scoundrel, Secondly that you are a Coward. [...] Tho’ it has always been my opinion and I am now convinced of it, that you are a Scoundrel, yet as you vilify a Dignified Character, I wish you’d either give me, as a friend of Mercer, or Mercer, the Satisfaction of a Gentleman (as perhaps you may quibble upon the Satisfaction of a Gentleman I mean that you should meet one of us with a case of Pistols & your friend) as it will prevent that disagreeable breach of the Peace called Assault and Battery.515

Here, Spaight not only called Howell names, but by explaining “Satisfaction of a Gentleman” to him, he suggested that Howell would not know since he was no gentleman. In the end, despite the threat of physical violence, no shots were fired in this affair; a congressional investigation averted an actual encounter.516 Generally, however, much less was necessary to instigate a fight. “[I]lliberal Expressions” or “disrespectful words” were often enough, and the correspondence of eighteenth-century public figures abounds with references to such combats.517 Dueling, it seems, was considered a necessary evil by many public figures of late eighteenth-century America. That, however, does not mean that they welcomed this form of conflict resolution. Many would likely have agreed with 515

516 517

Richard Dobbs Spaight to David Howell, 29 April 1884, in: Letters of Delegates, XXI:557f. Original emphasis. While none of the earlier correspondence has been located, reports exist of a previous altercation between Spaight, John Francis Mercer and Howell in Congress. Letters of Delegates, XXI: 558 notes 1 and 2. Mercer issued a challenge separately. See David Howell to Jabez Brown, 22 May 1784, in: Letters of Delegates, XXI: 639. Letters of Delegates, XXI:558 note 2. Jonathan Dickinson Sergeant to Gunning Bedford, 11 June 1777, in: Letters of Delegates, VII:183; Richard Henry Lee to Francis Lightfoot Lee, 5 July 1778, in: Letters of Delegates, X:223. For further mentions of duels see Thomas McKean to William Atlee, 7 July 1778, Letters of Delegates, X:237; James Lovell to Horatio Gates, 18 September 1778, in: Letters of Delegates, X:659f; Thomas Burke to Anthony Wayne, 6 June 1780, in: Letters of Delegates, XV:262; Thomas Burke to Anthony Wayne, 15 June 1780, in: Letters of Delegates, XV:321; Artemas Ward to William Gordon, 25-30 (?) November 1780, in: Letters of Delegates, XVI:382 footnote 2; John Sullivan to Hugh Shiell, 26 January 1781, in: Letters of Delegates, XVI:626; John Sullivan to Alexander McDougall, 27 January 1781, in: Letters of Delegates, XVI:630f; Alexander McDougall to Hugh Shiell, 7 February 1781, in: Letters of Delegates, XVI:685; Thomas Burke to Hugh Shiell, 15 (?) February 1781, in: Letters of Delegates, XVI:712ff; Alexander McDougall to Hugh Shiell, 19 February 1781, in: Letters of Delegates, XVI:720; Alexander McDougall to John Sullivan, 22 May 1781, in: Letters of Delegates, XVII:261f; John Hanson to Philip Thomas, 19 October 1782, in: Letters of Delegates, XIX:281. For a very close account of what kind of events might lead to a duel see Charles Thomson’s Notes of Proceedings in Congress, 23 November 1778, in: Letters of Delegates, XI:241-250, 299-302 and 374-376. Not all Congressmen approved of dueling. Cyrus Griffin of Virginia commented the practice wryly: “I am no great advocate for the custom of duelling; however if the Enemy will afford no amusement, and Gentlemen are tired of the world I shall not object to their shewing a bloody spirit the very moment before entrance into the holy presence.” Cyrus Griffin to Burgess Ball, 10 August 1779, in: Letters of Delegates, XIII:345.

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James Burgh’s assessment that dueling was “in direct contradiction to the laws of both God and man:”518 “Our laws forbid murder: our manners legitimate duelling,”519 claimed Burgh and, quoting Blackstone, found that “both parties meet avowedly with an intent to murder; thinking it their duty as gentlemen, and claiming it as their right, to wanton with their own lives, and those of their fellow-creatures, without any warrant or authority from any power either divine or human.”520 In Massachusetts in particular, this was a widely accepted position, where dueling met with religious as well as civil censure. After a Boston duel in 1728, for example, the local clergy bewailed the offense given to God. Death in a duel was, in their opinion, contrary to the godly order of the world and little better than suicide: “[... The] utmost Disorder in Death [is], the dying as a fool dieth, wickedly and wilfully by his own hands, or impiously in brutal Duels; which is but another way of Self-Murder.”521 Duels, indeed, were the ultimate contempt of god: “Let me therefore take this sad occasion with a heavy Heart,” preached Samuel Coleman the day after the duel, to warn our Young People in the Name and Fear of God, against bloody & unnatural Duels and all the train of vicious Courses that lead to it; to a miserable End here, and to a fiery Hell for ever. Duels are the Devil all over, who was the Murderer from the beginning; and as they come of him, so they represent him to the life, in all his Disobedience and Enmity to God, and in all his Pride, Rage, and bloody Hatred of the life of Man. Duels are both kinds of Murder united: There’s the Murder of a Mans [sic] Self in it, and the Murder of his Nei’bour also: And alas! as there is the Murder of the Body in it, so of the Soul also. In every Duel Men fly in the face of God, the Lord of Life, the God of the Spirits of all Flesh, the God in whose hand our Breath is; and who has given no Man power over his own Life, no more than leave to Kill his Nei’bour; but has forbid both on pain of the greatest Damnation.522

Thus, the ministers of Boston lamented that God’s laws were being ignored; that “there are those to be met with, who will not allow one man’s killing an518 519 520 521

522

Burgh, Political Disquisitions (Philadelphia) III:120. Ibid., III:119. Ibid., III:120. Benjamin Coleman, Death and the Grave Without any Order: A Sermon Preached July 7, 1728, Being the Lord’s-Day after a Tragical Duel, and Most Lamented Death. Boston, MA: Printed for John Phillips and Thomas Hancock, 1728 (=Evans 3009), 6. It has also been argued that the perhaps most famous duel of the era, that of Alexander Hamilton and Aaron Burr, was indeed a premeditated suicide on the former’s part. J. Lee Shneidman and Conalee Levine-Shneidman, “Suicide or Murder? The Burr-Hamilton Duel,” Journal of Psychohistory 8, no. 2 (1980). Coleman, Death and the Grave, 14f. It is not entirely clear whether the duel was fought with firearms or with bladed weapons. A newspaper item that appeared in the Boston Gazette on 8 July 1728, p. 2, does not shed light on the question either.

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other, in what we call a Duel, i.e. a fight with instruments of death, upon a challenge given and accepted, to be a murder in the nature of the fact,” and asked “[h]ow comes this not to be a murder?” Their answer was clear: “It is indeed an aggravated and complicated murder.”523 The law of Massachusetts was squarely on their side. The 1719 Act for the Punishing and Preventing of Duelling levied fines and mandated corporal punishments and imprisonment for duelists, so long as no participant was killed. The law was silent on punishments for those who happened to kill their adversary, leaving these to be treated as regular homicides. In 1728, just before the duel which occasioned the sermons quoted above, the legal provisions were tightened. Henceforth, every duelist and would-be duelist, as long as no blood had been shed, was for every such offence [to] be carried publickly in a cart to the gallows, with a rope about his neck, and [to] sit on the gallows for the space of one hour with a rope about his neck, as aforesaid, and then committed to the common goal [sic] of the county, and there to remain, without bail or mainprize, for the space of twelve months.524

If a death actually occurred in a duel, the 1728 law required the survivor to be executed “as is by law provided for wilfull Murther.” Furthermore, the bodies of the participants were to be denied the rites of a Christian burial, “but be buried without a Coffin, with a Stake driven through the Body, at or near the Place of Execution.”525 In Massachusetts, duels do not seem to have been overly common events. The press did occasionally report duels, but these had usually taken place elsewhere, particularly in the southern colonies or states. Yet, they must still have happened every once in a while: Had the original laws been effective, harsher penalties probably would not have enacted; nor would the papers occasionally have reprinted the pertinent legislation, citing “a strong Disposition [lately] in some Gentlemen to risque their Lives in a Duel, upon very trifling Occasions.”526 523

524

525

526

Joseph Sewall, He that would keep God’s Commandments must Renounce the Society of Evil Doers: A Sermon Preach’d at the Publick Lecture in Boston, July 18th, 1728, After a Bloody and Mortal Duel. Boston, MA: Printed by B. Green, for Daniel Henchman, 1728 (=Evans 3102), iii. An Act for Repealing an Act Intitled An Act for the Punishing and Preventing of Duelling, and for Making other Provision Instead Thereof (Ch. 15, 1728), in: Acts and Resolves II:516. Ibid., 517. Later Enactments repeated these provisions, the act of 1784 also making the bodies available for surgical dissection and anatomical studies before burial in the prescribed way. See An Act Against Duelling (Ch. 9, 1784), in: Acts and Laws: Passed by the General Court of Massachusetts, Begun and Held at Boston, in the County of Suffolk, on Wednesday the Twenty-Sixth Day of May, Anno Domini, 1784. Boston, MA: Printed by Adams and Nourse, 1784 (=Evans 18589), 145f. BEP 12 February 1753, p. 1.

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Thus, while Massachusetts was rather successful in uprooting and eradicating the custom of the duel, South Carolina did not manage nor seriously attempt to do so. By the 1780s, duels were regular events in the social life of the state. “We are sorry to say,” stated the South Carolina Gazette and General Advertiser in May of 1783 that more than one disagreeable rencontre has happened this week, in consequence of public, libellous attacks on private characters – But ‘tis with no little emotion we acquaint the public, that one person, a Mr. James Wright, has fallen a sacrifice to such unwarrantable proceedings. – A Mr. Fitzpatrick, who conceived himself injured by Mr. Wright, posted him in a public paper as a coward and a poltroon – Would to God that Printer had been aware of the consequence of such a publication! – This naturally produced a meeting, and an unlucky blow in the scuffle, has been the occasion of his death. – An inquest sat on the body this day, who are of that opinion. – It is with no little pleasure we assure the publick, that a determined disposition prevails in the Executive, to nip in the bud a practice so dishonorable to Government, so destructive of the peace and happiness of society.527

While this notice also suggested that the state government recognized the custom as detrimental to the maintenance of public peace and order, not much happened in the way of legislation. Dueling itself was not prosecuted in South Carolina and indeed, required little secrecy.528 A duel and its outcome could be reported and commented on with impunity. In one case the editors of the State Gazette of South Carolina even “sincerely join[ed] the numerous friends of the General [Charles Cotesworth Pinckney] in the most hearty wishes for his speedy recovery.”529 Even in those cases where participants were killed or injured, the survivors need not have worried much. Prosecutions in affairs of honor were more than lax; so lax even that the grand jury of Charleston District complained not only about the practice of dueling but particularly about the connivance of public officials. “We present as a great grievance,” they wrote, “the neglect of the whole body of the magistracy of this city, in not taking notice of the prevailing contempt of all laws human and divine, which appears in frequent duels fought

527 528

529

SCGGA 17 May 1783, p. 4. Killing in a duel was theoretically to be prosecuted as murder, yet enforcement in South Carolina was more than lax. Charles Cotesworth Pinckney, in 1804, called the law “obsolete, and a dead letter.” Lorenzo Sabine, Notes on Duels and Duelling: Alphabetically Arranged with a Preliminary Historical Essay (Boston, MA: Crosby Nichols, 1855) 326. SGSC 23 June 1785, p. 2. It is interesting to note that Pinckney was one of the early campaigners against dueling in South Carolina. Ibid., 321-26. See also Marvin R. Zahniser, Charles Cotesworth Pinckney, Founding Father (Chapel Hill, NC: Published for the Institute of Early American History and Culture, Williamsburg, Virginia by the University of North Carolina Press, 1967) 245-47.

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in this land without any manner of animadversion.”530 Even in those cases where prosecutions did ensue, rather little was to be feared in South Carolina. In an Essay on Duelling published in the South Carolina Gazette in 1772, the author ‘Clio’ opined that “it was never known, in our Country [of South Carolina], of any Man’s suffering, for killing another in a Duel, the Punishment adjudged to the Crime.”531 Even in a case full of aggravating circumstances – the supposed insult that led to the challenge had been uttered in testimony in the same court that now tried the surviving challenger – did not suffice to obtain a conviction for murder. Even though one of the judges in this case instructed the jury that “he considered this crime as amounting to murder,” the offender was convicted of a lesser charge – manslaughter – and immediately released on bail.532 When, during the conclusion of the trial, one of judges suggested that “so long as mankind continued to consider the fighting of duels as the only manner in which points of honor could be adjusted it was improbable the duelling would fall into disuse,” he aptly stated the somewhat ambivalent position of many South Carolinians.533 Duels were seen as necessary while the laws did not protect character sufficiently against attacks, yet a great body of evidence exists suggesting that many were at least uneasy with the custom. David Ramsey registered his disapprobation when he stated that “[m]istaken views of honor give rise to duels” in South Carolina and a writer in the South Carolina Gazette and General Advertiser found that the “execrable practice” of dueling had “been dignified with the title of an affair of honor; – but how unworthy of it, one would think no reasonable being can want [i.e. fail] to be convinced.”534 Indeed, even the image of what constituted a gentleman was called into question because it relied so much upon being able to defend honor in a duel. “What constitutes a gentleman?” asked the Charleston Morning Post in one issue in 1787. “Why, sir, let me think, why – a gentleman – why sir – a gentleman needs nothing but a pistol to support his character. Should you catch him in a lie, or plundering, or cheating, he will convince you that no such thing exists, by blowing your brains out.”535 Even open mockery was not out of the question in attacking the fashion of settling points of honor by shooting it out as an “Advertisement Extraordinary Copied from an Irish newspaper” makes amply clear. Modeled upon the common small ads taken out by tradesmen, it advertised that

530 531 532 533 534 535

SCGGA 19 October 1784, p. 4. The same grand jury presentments appeared in the SCWG/CMP of 20 October 1784, p. 1. SCG 20 August 1772, p. 1. CMP 21 February 1786, p. 2f. Ibid., p. 2. Ramsay, History of South Carolina: From Its First Settlement in 1670 to the Year 1808 215; SCGGA 25 July 1785, p. 2. CMP 26 April 1787, p. 2. For a similar jest see Cyrus Griffin’s remark upon dueling at footnote 136 above.

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Cornelius O’Trigger, most respectfully has the honor to acquaint gentlemen, that he fights duels in town and country, at the shortest notice, and will accommodate any timorous gentleman in settling points of honor, recovering gambling debts, or satisfaction for affronts and insults, on reasonable terms – Noses pulled; or a---s kicked by the piece. N.B. He means shortly to set up a convenient duelling ground, where there will be found small swords, light and convenient ground for long or short shots, either in open air or under cover in rainy weather, where gentlemen may fight in peace and quietness, and free from all disturbance by magistrates, and all such impertinent fellows. Pistols, powder and ball, hot cakes and tea, new milk and brandy, for the accommodation of his friends, and a surgeon always ready at hand. Inquire of capt. O’Trigger, late of the Frinch [sic] {service} at the Blunderbuss in Barrack street.536

Yet, despite such disapprobation of dueling, the custom showed great longevity in South Carolina. Gentlemen and others aspiring to that status continued to defend their character in duels: Putting one’s life on the line in defense of honor and reputation showed the importance of social recognition. Just as Cesare Beccaria had diagnosed in the passage quoted above, social standing in life depended upon reputation, and the former was worthless without the latter. Under these circumstances, a gentleman was “obliged to defend that, which is not sufficiently secured to him by the laws” with the use of pistols and violence.537

4.5. Social Aspects As has been seen in the sections about hunting and dueling, certain ways of using guns had important social connotations. Some uses of firearms were perceived as privileges of certain social classes. Especially in South Carolina, both pleasure hunting and dueling were associated with the upper classes and both were part of their maintenance of status. In the same vein, the mere possession of certain types of arms may have indicated social standing; extraordinary guns may also have been status symbols. There are numerous indicators that not every gun was the same. In probate inventories, for example, the appraisers very occasionally identified guns that were out of the ordinary. In Simon Athern’s 1715 inventory, they listed a brass gun and a pair of brass-mounted pistols in that of Alexander Seawright. Presumably, these guns were of a quality superior to the standard steel guns that most men owned for their militia service, as they would not rust, perhaps also

536 537

CMP/CG 19 August 1789, p. 2. Beccaria, An Essay on Crimes and Punishments 22. Compare Burgh, Political Disquisitions (Philadelphia) 121.

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because of the more refined look reminiscent of gold.538 Similarly, fowling guns were specifically mentioned, perhaps because they, too, were something extraordinary.539 The possession of a gun just for the purpose of hunting birds suggested that more than one gun must have been in the possession of the owner, especially as fowling pieces would hardly have been suitable for military duties. Perhaps the strongest sign of elevated social standing may have been the possession of pistols.540 Useless in hunting and for the average militiaman, they were necessary only for dueling, for military officers and members of cavalry units. Dueling, it will be remembered, was a custom strongly associated with the upper classes in colonial America and cavalry units of the militia recruited from the more affluent elements of society because of the higher cost involved in keeping and furnishing a horse for service. Officers were frequently elected in Massachusetts – though, again, often from the local social elite – and appointed in South Carolina, which would also have favored the upper echelons of society. Other sources, however, seem to offer more conclusive evidence that certain guns could have been status symbols. Advertisements for run-of-the-mill firearms, powder and ammunition were everyday fare in the newspapers of the eighteenth century. In standard ads, merchants mostly just announced that they had “a Parcel of guns,” “gun locks, muskets and pistols” or “small Arms, Pistols, [and] Blunderbusses” for sale, often indicating that suitable powder and shot were also available.541 However, the sellers usually pointed out when ex538

539

540

541

Inventory of Simon Athern, Dukes County Probate Records Vol. 1, p. 51; Inventory of Alexander Seawright, South Carolina Probate Records Vol. WPA 71 (=WPA-Transcripts of Recorded Instruments of the Secretary of State, Vol. KK), p. 90. See for example the inventories of Alexander Hunt, Suffolk County Probate Records Vol. 64, p. 595; Samuel Barker, Essex County Probate Records Vol. 347, p. 28; George Coffin, Nantucket County Probate Records Vol. 1, p. 39; and James Lardent, South Carolina Probate Records Vol. WPA 71 (=WPA-Transcripts of Recorded Instruments of the Secretary of State, Vol. KK), p. 189. For examples of inventories listing pistols, see (among many others) the inventories of John Bordman, Essex County Probate Records Vol. 336, p. 506; Joseph Greeley, Essex County Probate Records Vol. 336, p. 355; Abel Allis, Hampshire County Probate Records Vol. 6, p. 93; Paul Gore, Suffolk County Probate Records Vol. 70, p. 104; Samuel Morris, South Carolina Probate Records Vol. WPA 71 (=WPA-Transcripts of Recorded Instruments of the Secretary of State, Vol. KK), p. 282. BEP 11 December 1758, p. 2; SCWG/CMP 29 September 1784, p. 1; BEP 24 February 1746, p. 3. For just some further examples for this kind of advertisement in South Carolina see SCG 25 July 1771, p. 4; SCG 9 August 1773, p. 1; CMP/CG 13 October 1790, p. 2; CMP/CG 8 June 1789, p. 4; CMP/CG 12 December 1789, p. 2; CMP/CG 4 January 1790, p. 1; SCWG/CMP 23 August 1783, p. 1; SCWG/CMP 15 December 1784, p. 3; Royal Gazette 11 April 1781, p. 4; Royal Gazette 10 November 1781, p. 1; SGSC 17 July 1788, p. 2. For examples in Massachusetts newspapers see BEP 29 June 1761, p. 1; BEP 30 July 1764, p. 3; BEP 4 May 1772, p. 3; BEP 8 December 1740, p. 2; BEP 29 November 1742, p. 2; BEP 24 October 1743, p. 4; BEP 15 December 1755, p. 2; Boston Censor 11 April 1772, Postscript; BEP 25 July 1743, p. 2; BEP 9 June 1760, p. 4; BEP 10

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traordinary merchandise was available. In that case, they would highlight that they had, for example, “very neat Fire-Arms” or “choice Fowling Pieces” for purchase.542 In extraordinary cases, the weapons offered were described in detail, in the hope of raising interest in something that was rare and not easily obtained. In this vein, in June of 1757, at the height of the French and Indian War, merchant John Rowe of Boston offered “a parcel of fine French Arms” from a French supply ship captured on its way to Halifax and the printer of the Hampshire Gazette was trying to arrange “a Pair of Elegant Horseman’s Pistols” in August of 1789.543 In South Carolina, the role of elaborate weapons was even more visible. Guns that were described just as “neat” rarely made it into the ads there. Rather, merchants seem to have stocked highly ornamented guns for sale. Merchants John and Thomas Manson in downtown Charleston, for example, carried “Best Fowling Pieces, and Silver mounted Brass barrel Pistols”; Daniel Bourdeaux had “Neat fowling pieces, gold and silver mounted[,] Pistols, ditto” in stock; and merchants Skrine and Parker offered “an elegant Silver Mounted Rifle And a pair of silver monnted [sic] Pistols.”544 It is particularly interesting to notice that even in the eighteenth century brands and brand names already had a special allure. In apprising the public of particularly fine arms, South Carolina traders occasionally pointed out that their guns were the work of well-reputed and respected gunsmiths in the hope of fetching a better price. During the last quarter of the eighteenth century, guns manufactured by the English gunsmith John Twigg were especially well-liked. Thus, when John-Splatt Cripps and Company announced that they had “several very elegant Guns and Pistols made by Twigg” on offer, this was a clear attempt to capitalize on the familiarity of the name and the expectation of quality associated with it.545 Similarly, other local salesmen and gunsmiths used the well-known quality standards of English firearms to establish themselves as sellers of quality work. James L. Ransier, a gunsmith of Charleston, advertised

542 543

544

545

April 1758, p. 3. Bellesiles, Arming America 104, asserts that powder, shot and guns were almost never available for sale. BEP 15 December 1755, p. 2; BEP 18 December 1752, p. 2. BEP 13 June 1757, p. 3; Hampshire Gazette 5 August 1789, p. 3. See also BEP 27 September 1756, p. 2; BEP 21 July 1746, p. 4; BEP 4 July 1743, p. 4; BEP 26 July 1742, p. 4 and BEP 6 July 1741, p. 2 for more examples. SCWG/CMP 17 November 1784, p. 1; SCWG/CMP 24 July 1784, p. 3; CMP/CG 1 February 1790, p. 2. For more examples see CMP 12 March 1787, p. 4; SCWG/CMP 8 March 1783, p. 1; SCGCJ 26 July 1774, p. 3 and SGSC 26 May 1788, p. 1. SCWG/CMP 28 August 1784, p. 4. This ad was reprinted in SCWG/CMP 29 September 1784, p. 1. See also SCAGG 6 January 1775, p. 4; CMP/CG 21 February 1789, p. 2; CMP 10 April 1787, p. 2; SCWG/CMP 28 August 1784, p. 4. For further information on John Twigg and his work see W. Keith Neal and David H. L. Black, Great British Gunmakers, 1740-1790: The History of John Twigg and the Packington Guns (London: Sotheby Parke Bernet Publications, 1975) especially Part Two.

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that he sold English guns that were “Tower proof, and will be warranted of the best qualities.”546 Gunsmith Walter Dick argued the quality of his work in just the same manner, stating that “he proposes to execute any Orders with the most convenient Dispatch at the lowest Rates, and equal to any London Work.”547 A final piece of evidence that guns could be more than just everyday tools lies in the fact that people went to great lengths to get back guns they had lost or that had been stolen, and, vice-versa, to return found firearms to their rightful owners. “Lost, A Silver-mounted Pistol, Neatly inlaid, brass screw barrel, WC engraved on the thumb piece,” proclaimed an ad inserted in the Charleston Morning Post by one W. Cunnington, offering a reward for the finder delivering the gun to his house.548 A similar advertisement for a “steel-mounted Pistol” stolen from a house offered one guinea – a substantial amount of money – as a reward for the apprehension of the thief and the return of the gun.549 The situation worked the other way around as well. In that case, the finder would run an ad in a paper, announcing that he had found a gun and desired the owner to come forward to claim it. In this vein, Thomas Elliot notified the readers of the South Carolina Gazette that “A Gun [had been] found by one of [...his] Negroes,” requesting that the owner claim it at Elliot’s plantation. Elliot only demanded that the claimant pay for the costs of the advertisement and a reward to his slave “for his honesty.”550 Very similarly, the Boston Evening Post ran an ad that “[a]bout a year ago a pretty genteel Gun was left at a certain House in this Town, and no Owner yet appearing, these [presents] are to give Notice, that whoever makes a good Claim by giving a true Description of it, may have it again upon paying necessary Charges.”551 All these occurrences suggest very strongly that a firearm was more than an ordinary tool that would be used on a daily basis and discarded when a new one became available. Guns counted as more. At least some more elaborate specimens were prized possessions at the same time that simpler run-of-the-mill varieties were common daily tools. It is interesting, yet after the previous sections no longer surprising, to note that the more genteel, greatly adorned guns played a more important role in South Carolina than in Massachusetts. A gun decorated with gold or silver was 546

547 548 549

550 551

CMP/CG Supplement 3 October 1791, p. 1. “Tower proof” means that the work of a gun smith conformed to the quality standards of the royal armories in the Tower of London. SCAGG 6 January 1775, p. 4. This ad also appeared in the next issue, SCAGG 13 January 1775, p. 3. CMP 21 October 1786, p. 2. CMP 21 June 1786, p. 4. The fact that the thief was described as a “negro” may have been a reason for the size of the reward offered: A slave who might secretly be armed constituted a great danger in the minds of South Carolinians. SCG 30 June 1766, p. 1. BEP 16 May 1737, p. 2.

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very obviously more than just a weapon. As such, it fit perfectly into the selfportrayal of the South Carolina gentry. They generally flaunted their wealth and social standing at every opportunity and showed it ostentatiously even in their choice of necessary tools. It was thus in the quality and style of the appurtenances of their position that their power and influence were reflected.

4.6. Celebration Any kind of celebration in eighteenth-century America must have been rather noisy business. Pretty much any kind of joyous official ceremony included the firing of arms, both cannon and handguns. During the colonial period the celebration of the royal family was probably the most widely observed of such occasions. As late as January of 1775, for example, the queen’s birthday was observed in Boston “by Drinking their Majesty’s Health at the Town house. The Picquet Guards from all the Regiments fired three vollies [sic]. The Castle & Batteries & all the Fleet fired a Royal Salute.”552 Such solemnity, however, was not limited to the British military that was stationed in the colonies. Locals observed the custom of firing guns in celebration just as well. After a series of British military victories in America and on the European theater, the Boston Evening Post reported that citizens had celebrated “the success of his Majesty’s arms” in Worcester: “The cannon of the town were several times discharged, as well as several volleys of small arms, a large bonfire was erected, and many hundred fireworks play’d off.”553 Similar festivities were observed on a great number of occasions. These included all manner of tributes to the royal family, important political decisions such as declaration of war and peace, as well as honoring local officials and dignitaries. South Carolinians even greeted Christmas and the New Year with gunfire, to the great dislike of the Charleston grand jury, who presented “as a Grievance the common practice of firing Guns on the Eves of Christmas, and on the Mornings of the New Years.” The practice, they argued, was so common that it would greatly hinder the defense of the colony, as “by which Method, it is impossible to distinguish whether such Firings are intended as Alarms to the Inhabitants{,} to prepare themselves 552 553

Cunningham and Pierce, “Letters and Diary of John Rowe: Boston Merchant, 1759-1762, 1764-1779,” 289. BEP 13 October 1760, p. 3. The reference to Germany probably applies to the battles of Minden and Warburg, in which British and Hanoverian troops were successful against the French. Sebastian Küster has shown that the custom of firing guns in celebration was not limited to the American colonies but was equally practiced in Europe. Sebastian Küster, “Te Deum for Victory: Communication Victories through Sermons, Illuminations and Gun Salute,” in Atlantic Communications: The Media in American and German History from the Seventeenth to the Twentieth Century, ed. Norbert Finzsch and Ursula Lehmkuhl (Oxford/New York: Berg, 2004).

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against an internal or approaching Enemy, or to proclaim the illegal Mirth of a few inconsiderate People.”554 Indeed, guns were so important in the celebration of public events that havoc occasionally ensued if they were not available. In 1754, the South Carolina Gazette reported that in Savannah in the neighboring province of Georgia a celebration had gotten out of hand, presumably due to the lack of guns: “We hear from Georgia,” wrote the Gazette, that the lower Class of People at Savannah, being unprovided with such Materials as they commonly use in testifying their Joy on public Occasions, and unwilling to lose their Share of Rejoicing on Governor Reynold’s Arrival there, set Fire to and made a Bonfire of the Guard-House, and had nigh done the same with the old Council-House: That on the 30th ult. the Day after the Governor’s Arrival, the Militia, &c. were reviewed: And that on the 31st they were again reviewed, when His Excellency’s Commission was published, which was succeeded by repeated Firings, Huzza’s [sic], &c. &c. &c. [...]555

After the Revolution, the practice of firing guns in celebration continued unabated. Only the focus changed and the events commemorated were no longer those of Great Britain but those of the republic. Thus, the militia and military complement of Charleston greeted the peace agreement in 1783 with small arms fire: “[...T]hree huzzas were given [...], immediately after which a feude-joie was fired, beginning on the right of the line by the Continentals, and continued along by the Militia, after which three huzzas, then a general volley of musquetry from the whole line with three huzzas, the music playing.” The participants then proceeded to “Col. Moultrie’s house on the Bay, where a feude-joie, and general volley of musquetry was fired from the whole line.”556 Among the days most regularly commemorated in this manner was the Fourth of July. In those ceremonies, artillery fire and “a volley of small arms” continued to be a common accessory.557 Even the personality cult continued after independence. The dignitaries honored thereafter were those of the states as well as figures of national renown. Thus, at the funeral of General Israel Putnam, the militia quite naturally appeared under arms and fired a salute.558 The same held even truer for George Washington: During his tour of the states in 1789, 1790 and 1791, he was received by the militia under arms everywhere. Cannon and small arms were often

554 555 556 557

558

SCGCJ 27 October 1772, p. 3. The same grand jury presentments were also printed in SCG 29 October 1772, p. 4. SCG 7 November 1754, p. 1. SCGGA 26 April 1783, p. 4. SCWG/CMP 31 March 1784, p. 2. See also Ezell, ed., New Democracy in America 7. For examples of Massachusetts celebrations see American Gazette and Constitutional Journal 2 July 1776, p. 1; American Herald and Washington Gazette 15 November 1790, p. 2. Hampshire Gazette 16 June 1790, p. 3.

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fired as marks of respect.559 Thus, firearms were a necessary accompaniment for any kind of celebration during the eighteenth century in both Massachusetts and South Carolina. Almost no official function could do without them.

4.7. Limitations of and Opposition to Gun Use In the previous sections of this chapter, it has become obvious that guns and gun use permeated all aspects and all areas of daily life in Massachusetts and South Carolina. Gun use was widespread in both colonies, encompassing almost all social and economic groups. Slaves were generally excluded, though that limitation was not always categorical. Women, it seems, were not explicitly excluded from using firearms, but mentions of armed women are extremely rare. Among the white population, most applications of firearms we have seen thus far generally carried a positive connotation. Yet, not all gun use was seen in this light. It is obvious that ruling majorities tried to keep arms out of the hands of such elements of society they deemed dangerous to the interests of those ruling majorities. This applied primarily, it will be remembered, to slaves in South Carolina. Slaves constituted a majority of the population there and guns were seen by the ruling white minority as a means of evening the odds. Similarly, other groups were from time to time disarmed when the security of the state as defined by the majority seemed to require it. Thus, at the onset of the Revolution, the revolutionary authorities attempted to disarm the people who might use their arms against the Rebels and in support of Britain. As early as May of 1775, the provincial congress of Massachusetts passed a resolution exhorting them to “enquire into the Principles and Conduct of such suspected Persons, and that they cause all such to be disarmed who do not give them full and ample Assurances” as to their loyalty to the revolutionary cause.560 These seizures of suspected Tories’ arms occurred with the full blessing and support of the Continental Congress, which actively encouraged states and localities to disarm their loyalist populations.561 The dangers of gun use may have been a more influential damper upon the enthusiasm of the people for firearms. Hunting accidents, we have seen, were a widespread problem, but misadventures did not end there. It is very clear from the newspapers of colonial times that guns were dangerous tools and people frequently met with disaster due to firearms. Apart from intended killings and 559 560 561

Berkshire Chronicle 9 November 1789, p. 2-3. Resolution of the Provincial Congress, Watertown, 8 May 1775. [Watertown, MA: Benjamin Edes, 1775] (=Evans 14227). For actions of Congress in such matters see for example JCC, 30 December 1775, III:466f; JCC, 1 February 1777, VII:83; JCC, 19 April 1777, VII:285f.

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the usual hunting accidents, people shot each other left and right in colonial Massachusetts. Often, accidents were caused by inadvertent handlers of guns, shooting themselves or bystanders with arms they thought unloaded. The Boston cleric Ebenezer Parkman lamented in January of 1779 “ye awful Death of Benj. Andrews of Boston Esq. who last ---- shot himself through ye Head by a Pistol, which he was handling, & not aware yt it was loaded. Lord, what is Man!”562 Again and again, people were killed in such “melancholy affairs.” For some, this was reason enough to warn of the dangers guns posed to their users and their environs: On Saturday last a melancholy affair happened on board the sloop Tryon, Amasa Lewis, Master, bound to the Vineyard; about 2 Leagues with-out the Light-House, Solomon Weeks, who is part Owner of the Vessel, carelessly and foolishly took up a Musket, in order to scare one Mr. Isaac Butler, who was a Passenger on board, and not knowing it was loaded, by the rolling of the Vessel it went off, and the Wad (there being no Shot in the Gun) entered the upper Part of the Thigh of said Butler; upon which, after using their utmost Endeavors to stop the bleeding of the Wound, they put back again for this Town [of Salem], but he expired just after they reached the Long Wharf: – Another Caution against playing with Guns foolishly!563

The Boston Evening Post blamed the frequency of such accidents upon the general carelessness of gun owners and found it “not improper to caution People who are fond of Gunning, to be more careful than they generally are.” The danger, stated the newspaper, lay in “it being a Practice for many to keep their Guns loaded, if they have not had an Opportunity of firing at Game, imagining that no Person will ever meddle therewith, until they have Occasion to use it themselves, by which Means we have so frequent Transactions of such unhappy Consequences.”564 Yet, such exhortations – urgent as they were – seem not to have been heeded very often, as mentions of accidents grace the pages of the newspapers with great regularity. Most striking perhaps is the commonness with which children were involved in such accidents. Not only were children the victims of gunfire from adults, but they themselves played with guns and occasionally happened to kill one another: “On the 30th of September past [i.e. 1750], a sorrowful accident happened at Andover, viz. a Lad about 8 or 9 Years old, being left at Home with one or two other Children, took up a loaded Gun,

562

563 564

Ebenezer Parkman and Harriette Merrifield Forbes, The Diary of Rev. Ebenezer Parkman, of Westborough, Mass., for the Months of February, March, April, October, and November, 1737, November and December of 1778 and the Years of 1779and 1780 (Westborough, MA: The Westborough Historical Society, 1899) 12 January 1779, 84. For similar accidents see for example BEP 20 May 1751, p. 2; Western Star 15 March 1791, p. 3; Berkshire Chronicle 23 November 1789, p. 3. SEG 19 June 1770, p. 3. Original emphasis. BEP 1 October 1764, p. 3.

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and playing with it, it went off, and Shot one of the Children in the Breast, and kill’d it on the Spot.”565 Children were not the only people to whom clumsy and inept handling of guns posed a danger. Strikingly, many accidents occurred around militia training, in a setting in which it might have been expected that the participants demonstrate a certain expertise in their handling of guns. After a raving review of the militia musters in western Massachusetts, for example, the editors of the Berkshire Chronicle wrote that they were sorry to add, that at the review at Lanesborough, a son of Capt. Cadwell was badly wounded by the careless discharge of a pistol by another person. The explosion tore the skin and flesh from his right temple, and was thought to have penetrated the head; but by the timly [sic] assistance and proper care of two surgeons present, he is in a fair way of recovery.566

The victim of another such accident a year earlier had been less lucky. Reporting from neighboring Vermont, the Chronicle bemoaned the misfortune of such unnecessary accidents: We hear from Halifax in Windham county, that on Tuesday last, after Capt. John Gnault, of that town, had dismissed his company, the soldiers, as is too common among militia men, began firing round their Captain, in order to honour him, when unfortunately one of their guns being less elevated than the soldier was aware of, was fired close behind Capt. Gnault, the contents of which entered his skull, and instantly deprived him of life. – Thus in the prime of life, through mere carelessness, and unsoldier-like, boyish folly, fell a very valuable officer; in whose death the public have to lament the loss of a citizen whose conduct, in every particular, does honour to his memory.567

For some reason or other, such reports seem to have been much more widespread in Massachusetts than in South Carolina. Yet, occur they did, for even the State Gazette of South Carolina thought it necessary in 1787 to print a warning. After a report of a man shot and in critical condition, it suggested that “[t]his,

565

566 567

BEP 15 October 1750, p. 2. For some further examples of accidents involving children see BEP 15 April 1754, p. 2; BEP 13 November 1752, p. 2; BEP 4 November 1751, p. 2; BEP 15 October 1750, p. 2; BEP 12 September 1743, p. 1; BEP 8 September 1735, p. 2; BEP 18 April 1774, p. 2; BEP 14 December 1772, p. 3; BEP 1 October 1764, p. 3; Hampshire Gazette 19 September 1787, p. 3; Boston Gazette 8 September 1735, p. 4; Boston Gazette 29 August 1737, p. 3; Boston Gazette 3 May 1743, p. 3; Boston Gazette 13 September 1743, p. 3; Boston News-Letter 11 October 1750, p. 2; Boston NewsLetter 27 September 1764, p. 3; Boston News-Letter 28 May 1767, p. 2; SCWG/CMP 13 February 1784, p. 3. Berkshire Chronicle 24 August 1789, p. 3. Berkshire Chronicle 15 May 1788, p. 3.

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together with similar accidents which have frequently happened, ought to caution people to be very careful how they handle firearms.”568 Even when handled properly, firearms were not very safe implements. Every once in a while, guns would come apart, often gravely injuring their users. Sometimes, an overdose of gunpowder was the cause, sometimes no such reason was reported. One such case was reported in the Boston Evening Post in 1740, when a gun had exploded after a militia muster: “Last Tuesday, just after Training was over, a young Man of this Town named Samuel Hunstable, a Carpenter by Trade, in firing off his Gun, the Barrel split all to pieces, and tore his left Hand (which he most used) in so terrible a Manner, that the Surgeons were obliged to cut it off soon after.”569 Similarly, the most necessary accouterment of a gun was in itself very dangerous. In order to fire a gun, gunpowder was required, which by its explosion propelled the bullet down and out of the barrel. However, the storage and handling of gunpowder were hazardous, too. These dangers were not unknown to the colonial and state authorities. Both South Carolina and Massachusetts had laws on the books to minimize the danger posed by the necessity of storing gunpowder. “[...C]onsidering the imminent Hazard of keeping Powder in Store-houses with other Goods and Merchandizes, or in or near Dwelling-houses,” Massachusetts required that gunpowder be stored exclusively in the public storage; South Carolina did the same.570 Not only a primary explosion was on the minds of the legislators passing these acts, but the fact that an ordinary fire might end in a catastrophe contributed, too. When banning the storage of powder on beached ships in Boston harbor, the General Court reasoned that “in case of fire, the lives and estates of his majesty’s good subjects are in great danger, as well as able-bodied and well-disposed persons discouraged and affrighted from giving their assistance and using any endeavours for the extinguishment thereof.”571 Similarly, guns kept loaded in homes bothered the representatives. “[T]he depositing of loaded Arms in the Houses of the Town of Boston, is dangerous to the Lives of those who are disposed to exert themselves when a Fire happens to break out [...],” the lawmakers reasoned in the preamble of an act prohibiting the keeping

568 569 570

571

SGSC 1 October 1787, p. 2. BEP 27 October 1740, p. 4. An Act for Erecting a Powder-House within the Town of Boston (Ch. 4, 1706), in: Acts and Resolves, I:588. South Carolina did likewise in An Act for Raising a Public Store of Gun-Powder for the Defence of the Province of South Carolina (#685, 1741), in: StaL III:588ff. The latter colony limited the amount permissible in private storage to one quarter barrel, while the former, in an additional act, drew the line at 25 pounds. An Act in Addition to an Act for Erecting a Powder-House in Boston (Ch. 12, 1715), in: Acts and Resolves, II:23. An Act in further Addition to an Act for Erecting a Powder-House in Boston (Ch. 3, 1719), in: Acts and Resolves, II:136.

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of loaded guns in houses in Boston.572 In South Carolina, the firemasters of Charleston were even empowered to search houses in the city for gunpowder and other combustibles. Yet, despite such regulation – and even regulation under which precautions powder was to be transported in the streets – accidents were rather common, as even small quantities might suffice to put a building in grave danger.573 In 1739, a house in Boston was rent to pieces and several persons killed when a private store of gunpowder – “supposed to be several pounds” and hence probably within the legal limit – blew up.574 Similarly, in 1747, a single spark was enough to level a blacksmith’s shop, after it had landed in a powder keg that was uncovered and close to the forge.575 Nonetheless, enforcement of the regulation seems to have been either lax or inefficient, as accidents continued to happen and in South Carolina the powder magazine itself came to be a cause for concern: In April of 1768, the grand jury of Charleston “present[ed] as a grievance, that so large a magazine of gun-powder as the present, is kept in Charles-Town, to the great terror of the inhabitants, whose lives and fortunes are in continual danger of destruction thereby.”576 It seems clear that there was a perception that guns and gunpowder were dangerous implements to keep and to use. Thus, the two colonies not only regulated the amount of ammunition that could legally be kept in a house or shop, but sometimes and in some respects went farther. While South Carolina remained largely passive in this respect, Massachusetts – in addition to the various laws limiting hunting – put certain limits on the use of guns. Especially in Boston, the most populous town of the province, too liberal use of firearms must have been a problem. As early as 1713, the General Court passed An Act to prohibit Shooting or Firing of Guns near the Road or High-way on Boston Neck, making it illegal “to discharge or fire off any Gun upon Boston Neck within Ten Rods of the Road or High-way leading over the same.” The declared intention of the law was to safeguard travelers upon the highway, as “the limbs and lives of several persons have been greatly endangered in riding over Boston Neck, by their Horses throwing of [sic] them, being affrighted and starting at the firing of 572

573

574 575 576

An Act in Addition to the Several Acts already made for the Prudent Storage of GunPowder within the Town of Boston (Ch. 13, 1783), in: Acts and Laws: Passed by the Great and General Court or Assembly of the Commonwealth of Massachusetts Begun and Held at Boston, in the County of Suffolk, on Wednesday the Twenty-Ninth Day of May, A.D. 1782; and from thence continued by Adjournments to Wednesday the Twenty-Ninth Day of January following, and then met. Boston, MA: Benjamin Edes, 1783 (=Evans 18022), p. 218. Both colonies required that powder could only be transported when the wagon or the casks were covered, lest a spark fall onto the powder. An Act for the Appointment of a Powder Receiver, and for the Better Regulating of that Office (#743, 1746), in: StaL III:686; An Act in Addition to an Act for Erecting a Powder-House in Boston (Ch. 12, 1715), in: Acts and Resolves, II:23f. BEP 26 February 1739, p. 2. BEP 21 September 1747, p. 4. SCG 9 May 1768, p. 1.

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guns by gunners that frequent there after game.”577 Similarly, shooting was strictly limited in Boston itself in 1746. Arguing that “[w]hereas by the indiscreet firing of guns laden with shot and ball within the town and harbour of Boston, the lives and limbs of many persons have been lost, and others have been in great danger, as well as other dammage [sic] has been sustained,” shooting any kind of cannon, guns or pistols was banned for the next three years. Only military target practice was excluded from the general ban if it was carried out in specifically circumscribed locations.578

4.8. Conclusion The significance of firearms in the culture of Massachusetts and South Carolina was manifold during the eighteenth century. Many aspects of daily life were touched, so that almost everyone’s life was in some way or other affected by the ways in which colonists dealt with guns. A vast majority of the population would probably have agreed with Charleston gunsmith James Ransier’s abovequoted belief that guns were quite simply necessary.579 One area in which guns were of daily importance was hunting. It was a way of putting food on the table that continued to be significant in both colonies throughout the century. However, hunting was more than just a way of procuring sustenance for the family. It also served as a way of pest control, rooting out animals that endangered the colonists, their domestic animals or their economic and farming interests. As an entertainment and pastime hunting also took on a strongly gendered and social connotation. Generally, only males hunted and especially in South Carolina pleasure hunting was reserved by law as an entertainment to the upper strata of society. Military service was another such area in which guns were important. Many men served in some military capacity or other. Again, the participation was, in principle, exclusively male and furthermore limited to free citizens. Generally, this excluded blacks as well as Native Americans, even in areas where both might have been closely assimilated into white society. Thus, the militia came to signify much more than just a military force or an ideological concept, even though it was important on both counts: Militia service depended upon citizenship and at the same time signified that very citizenship in the sense of a stake in society, of active membership and belonging.

577 578 579

An Act to Prohibit Shooting or Firing off Guns near the Road or High-way on Boston Neck (Ch. 6, 1713), in: Acts and Resolves, I:720. An Act to Prevent the Firing of Guns charged with Shot or Ball in the Town of Boston (Ch. 11, 1746), in: Acts and Resolves, III:305. CMP/CG 21 February 1791, p. 3.

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This latter aspect was even more blatant in the custom of dueling which prevailed in both colonies and states throughout the century. By definition, only men of honor could fight a duel, as others did not have any honor to defend. Thus, the ‘affair of honor’ served to exclude those who did not belong: Women, white males of lower social strata and especially blacks were kept at bay and denied access to the ruling part of society which defined itself through the code of honor. The value contemporaries attached to elaborate and ornate firearms both reflected and reenforced these aspirations of social exclusivity. In acts of celebration a seemingly wider inclusion was practiced. Feux-dejoie were a common ingredient whenever some patriotic or locally significant event demanded. Yet, in the end, the same people participated who usually derived some sort of status from their possession and use of guns. Again, the firing was executed by armed men who celebrated some political feat also usually accomplished by men. Thus, women continued to be excluded – with the notable exception of female members of the royal family – as were the groups on the fringes of white male society. But these groups, too, featured in the prevailing system of inclusion and exclusion. Those who were kept outside of the ruling system or who opposed it generally were or were portrayed as a threat to the very system: Slaves and criminals were among the groups against whom the system of armed society was most generally geared. Arms were owned and stored explicitly to keep them outside the system and in due submission to it. Guns were used liberally to enforce this concept of inclusion and exclusion. Thus, firearms came to be associated with citizenship and honor, with social standing and political rights, with maintenance of domination, order and stability as well the subversion of them. Guns infused all of these social concepts into the white male gender role. Guns came to signify the dominance of white males in eighteenth-century culture in differing degrees in both Massachusetts and South Carolina. How much those excluded smarted from their subordinate position is difficult to judge, as the textual record on their position is often very limited. However, it becomes evident that guns carried enormous cultural significance when looking at the end of the system of black exclusion through slavery: Shortly after emancipation, freedmen were granted the right to own arms not only as incident to citizenship but also to social inclusion, at least as long as the southern states were under federal control.580 580

The right to bear arms was confirmed to citizens “without respect to race or color, or previous condition of slavery” in the 1866 Act to continue in force and to amend ‘An Act to establish a Bureau for the Relief of Freedmen and Refugees,’ and for other Purposes, in: United States Statutes at Large, XIV:173-177. The quotation is at 176f. However, this grant was limited to such states or districts “where the ordinary course of judicial proceedings has been interrupted by the rebellion [...].” Ibid., 176. Stephen P. Halbrook has made a very forceful statement about African Americans and the right to keep and bear arms in both That Every Man be Armed and Freedmen, the

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All of these values became associated with the right to own and use firearms. In colonial and early national America, these ideas and concepts became conflated with English constitutional history and precedent, in which the right to own guns had also played a significant role. In the next chapters, I will attempt to detail the English roots of the right to bear arms and how those roots and American culture became entwined in the debate over the federal constitution and Bill of Rights and what became the Second Amendment.

Fourteenth Amendment and the Right to Bear Arms, 1866-1879. I find both books deeply flawed, however, and I hesitate to base my argument upon them entirely. Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866-1876 (Westport, CT: Praeger, 1998); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, 1st ed. (Albuquerque, NM: University of New Mexico Press, 1984). See also Stephen P. Halbrook, “The Fourteenth Amendment and the Right to Keep and Bear Arms: The Intent of the Framers,” in Gun Control and the Constitution, ed. Robert J. Cottrol (New York: Garland, 1994). For some of the flaws in That Every Man be Armed see Robert E. Shalhope, “The Right to Bear Arms: A View from the Past,” Reviews in Americam History 13, no. 3 (1985). I find them continued in Freedmen, as does reviewer Richard Hume, even though most other reviewers greeted the book rather positively. Richard L. Hume, “Review of Stephen P. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Keep and Bear Arms.,” American Journal of Legal History 43, no. 1 (1999). Saul Cornell also points out that the question of freedmen’s right to arms was an issue when the Fourteenth Amendment was being debated. Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (Oxford/New York: Oxford University Press, 2006) 168-75.

5. Constitutional Precursors to the Second Amendment

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law. (English Bill of Rights 1688/89, in: Andrew M. Browning (ed.), English Historical Documents, Vol. 8: 1660-1714. London: Eyre and Spottiswoode, 1953, 123.) The people have a right to keep and to bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military shall always be held in an exact subordination to the civil authority, and be governed by it. (Massachusetts Constitution of 1780, Part the First, Art. XVII, in: Thorpe, Federal and State Constitutions, III:1892.)

5.1. English Origins The idea of guaranteeing a constitutional right to keep and bear arms was not novel when it came up in the debates about the federal Constitution of 1787 and the addition of a bill of rights. The constitutional revolution of 1688 and 1689 in Britain had been fought over the respective extents of the king’s prerogative and Parliament’s powers. In that struggle, the maintenance of a standing army as well as attempts to disarm all those the crown considered opponents had been issues.581 In the settlement after the Glorious Revolution, Parliament and the Crown addressed the question. In the charges leveled against the deposed king, the Bill of Rights declared that James II did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom; [...] By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law; [and] By causing severall good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law.582

After having listed James’s malfeasances, Parliament with the assent of the crown went on “for the vindicating and asserting their ancient rights and liberties” to declare what it considered its privileges. Parliament declared “[...] That 581

582

Malcolm, To Keep and Bear Arms 102-21; Lois G. Schwoerer, The Declaration of Rights, 1689 (Baltimore, MD: Johns Hopkins University Press, 1981) 71-78; Schwoerer, "No Standing Armies!": The Antiarmy Ideology in Seventeenth-Century England 147-51. English Bill of Rights 1688/89, in: Browning, English Historical Documents, Vol. 8, 122.

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the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law; [and] That subjects which are Protestants may have arms for their defence suitable to their condition and as allowed by law.”583 Those rights, the declaration continued, were “the true, ancient and indubitable rights and liberties of the people of this kingdom” of England, “and so shall be esteemed, allowed, adjudged and taken to be.”584 Such declarations notwithstanding, the right to have arms was, as Joyce Malcolm has pointed out, hardly ancient and indubitable for Englishmen of the time.585 In addition to not being very old and dubitable in their origin, the right to have arms was strictly limited.586 During the deliberations on the Declaration of Rights, the House of Lords had objected to the wider language which had originally been included. In order to safeguard the privileges of the upper classes – especially hunting – and to keep a damper on potential popular uprisings, the Lords rewrote the sections to acknowledge the standing laws which gave the gentry and the aristocracy an almost exclusive right to own arms.587

5.2. Colonial Americans and the English Right to Arms While to Englishmen of the late seventeenth century the explicitly guaranteed – albeit limited – right to own arms was a novelty, the situation was different for Americans of the eighteenth century. The question rarely arose whether the people could own arms. Quite on the contrary, as we have seen in the previous chapter, people were required to supply themselves with arms and to be prepared to use them in the defense of the colony. Most importantly, the strict limitations of the Bill of Rights were not very widely received in America. One might even say that colonists simply ignored that part of the Declaration, as

583 584 585

586

587

Ibid., 123. Ibid., 126. Malcolm, To Keep and Bear Arms 121f. Lois Schwoerer has argued that Parliament was rather inventive generally about its supposedly “ancient” rights. Schwoerer, "No Standing Armies!": The Antiarmy Ideology in Seventeenth-Century England 150f. Schwoerer finds that the provisions of the Bill of Rights limited the right to ownership of firearms to as little as three percent of the population. Lois G. Schwoerer, “To Hold and Bear Arms: The English Perspective,” in The Second Amendment in Law and History: Historians and Constitutional Scholars on the Right to Bear Arms, ed. Carl T. Bogus (New York: New Press, 2000), 219. Schwoerer, The Declaration of Rights, 1689 77f.

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“[...] that Article restricted a right to guns in ways entirely unacceptable to them.”588 However, most colonists had an even better claim than custom, necessity and utility. As they saw it, the right was established securely in English law by the Bill of Rights and they had little doubt that the right applied to them, too. Their colonial charters gave them good grounds for such assumptions. In the Charter of Carolina of 1665, for example, the king stated that all and singular the subjects and liege people of us, our heirs and successors, transported, or to be transported into the said province [of Carolina], and the children of them, and such as shall descend from them there born, or hereafter to be born be, and shall be denizens and lieges of us, our heirs and successors of this our kingdom of England, and be in all things, held, treated, and reputed, as the liege faithful people of us, our heirs and successors, born within this our said kingdom, or any other of our dominions; and may inherit or otherwise purchase and receive, take, hold, buy and possess, any lands, tenements, or hereditaments, within the said places, and them may occupy and enjoy, sell, alien, and bequeath; as likewise, all liberties, franchises, and privileges, of this our kingdom, and of other our dominions aforesaid, may freely and quietly have, possess and enjoy, as our liege people, born within the same, without the molestation, vexation, trouble, or grievance, of us, our heirs and successors: Any statute, act, ordinance, or provision to the contrary notwithstanding.589

Thus, in their migration to America, colonists of Carolina had not surrendered their rights as English subjects but rather had them explicitly confirmed in the document founding their colony.590 Such belief must of necessity have been rather widespread, as most colonial charters contained explicit declarations to that effect. The custom of guaranteeing colonists their rights as English subjects continued after the Glorious Revolution. The new Charter of Massachusetts, granted in 1691 after a brief interlude under the Dominion of New England, used language very similar to the earlier pronouncements:

588

589 590

Schwoerer, “To Hold and Bear Arms: The English Perspective,” 227. Schwoerer comes to the conclusion here that, for that reason, the language in the English Bill of Rights should be seen as a gun control measure. Also for that reason, she argues, the English provision could not have been understood as a basis for an unrestricted right to own guns, nor did she find evidence that the contemporaries of the American Bill of Rights saw the English one as a precursor to their own enactment. I agree with the assessment that an unrestricted right could not be derived from the English Bill of Rights, but I still see the English Bill of Rights as a source for similar American enactments in idea and principle, but not necessarily in meaning. Charter of Carolina, 30 June 1665, in: Thorpe, Federal and State Constitutions, V:2765. Leonard Williams Levy, Origins of the Bill of Rights (New Haven, CT: Yale University Press, 1999) 139.

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Our Will and Pleasure is and Wee doe hereby for Vs Our Heires and Successors Grant Establish and Ordaine That all and every of the Subjects of Vs Our Heires and Successors which shall goe to and Inhabit within Our said Province and Territory and every of their Children which shall happen to be born there or on the Seas in goeing thither or returning from thence shall have an enjoy all Libertyes and Immunities of Free and naturall Subjects within any of the Dominions of Vs Our Heires and Successors to all Intents Construccons and purposes whatsoever as if they and every of them were borne within this Our Realme of England [...].591

Thus, the right to own arms – confirmed to Englishmen in the Bill of Rights – was in principle very much applicable in the colonies of South Carolina and Massachusetts. The faith in this legal situation was even reenforced on the eve of the American Revolution by the publication of William Blackstone’s Commentaries of the Laws of England. This treatise was highly influential in the colonies:592 To many American eyes, Blackstone seemed to confirm the colonial position on their rights in general. Among those rights retained by Englishmen, Blackstone recognized a right to keep and bear arms. This right, however, was not a primary right in Blackstone’s nomenclature, but an ‘auxiliary right,’ acting as a safeguard to the “three principle or primary articles; the right of personal security, the right of personal liberty; and the right of private property.”593 This safeguard, however, was imperative in Blackstone’s view, for “in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment.”594 Thus, stated Blackstone, the British Constitution “established certain other auxiliary subordinate rights of the subject, which serve principally as barriers to protect and maintain inviolate the three great and primary rights [...].”595 Among those subordinate rights – Blackstone enumerated Parliament’s privileges, the limits upon the King’s prerogative, recourse to the courts and the right to petition in addition to the right to arms – the right to have arms served as a sort of ultima ratio should all others fail: The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are

591 592 593 594 595

Charter of the Massachusetts Bay 1691, in: Thorpe, Federal and State Constitutions, III:1880f. On the impact of Blackstone in North America see for example Gerald Stourzh, “William Blackstone: Teacher of Revolution,” Jahrbuch für Amerikastudien 15 (1970). Blackstone, I:125. Ibid., 136. Ibid.

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allowed by law. Which is also declared by the same statute 1 W. & M. st. 2 c. 2 [i.e. the Bill of Rights] and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.596

Thus, even without any legal or constitutional enactments specifically granting the liberties of the Bill of Rights to them, Americans felt very secure that it properly applied to them just as much as to any other English subject. Blackstone, the single most respected authority on the common law, had made that abundantly clear.597 Just as the argument over the rights of the colonies and colonial Britons heated up to become a veritable conflict, another British author threw oil on the fire in 1774. In the tradition of the radical Whigs, James Burgh’s Political Disquisitions lamented the corruption and decline of British morals and politics. Just as other radical Whigs had done for eighty years, Burgh devoted considerable room to what he considered one of the most pressing and dangerous problems Britain was facing: a standing army in the hands of an uncontrolled, even uncontrollable government. In Burgh’s view, there existed but one method to keep a government on a sufficiently short leash. “No kingdom can be secured otherwise than by arming the people,” found Burgh, quoting Andrew Fletcher’s Political Works: The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion. And though for a while, those, who have the sword in their power, abstain from doing him injury, yet by degrees he will be awed into submission to every arbitrary command.598

The colonists perceived the situation described by Burgh as uniquely applicable to the colonies and their citizens in the early 1770s. Britain seemed in a position of overawing her colonies, even to the point of using what in the eyes of the colonials were oppressive methods. Many constitutional questions pertaining to the relationship between the colonies and the mother country

596 597

598

Ibid., 139. Jack P. Greene has argued that it was exactly because the colonists expected to be covered by the Bill of Rights that the situation deteriorated in Massachusetts. Jack P. Greene, “The Glorious Revolution and the British Empire, 1688-1783,” in The Revolution of 1688-1689: Changing Perspectives, ed. Lois Schwoerer (Cambridge: Cambridge University Press, 1992), 269f. Burgh, Political Disquisitions (Philadelphia) II:390.

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were unclear. Indeed, as John Philip Reid has suggested, there were two British constitutions, both of which rested upon very different interpretations of the settlement reached in the Bill of Rights.599 Britons, and especially Parliament, read the document as stripping the king of power and vesting it in Parliament instead, whereas Americans interpreted the document as a guarantee of popular rights, held by individual citizens, vis-à-vis any government. Thus, in the imperial debate prior to the Revolution, Britons stressed the powers and rights of Parliament, while Americans stressed the restraints on government contained in the Bill of Rights.600 Under these circumstances, many British actions in the 1760s and 1770s must have seemed illegal and unconstitutional to Americans. When the imperial crisis escalated, however, British plans became oppressive in American eyes. The British Coercive Acts, enacted by Parliament to force Boston to indemnify the East India Company for their tea lost in the Boston Tea Party, were quickly dubbed Intolerable Acts in the American colonies, as they applied the ax to the British constitution – a constitution Americans viewed as a constitution of customary restraints. Alerted by British action to the precarious position of their rights and liberties, Americans considered armed resistance as an option, an option that was – under their interpretation of the constitution as well as under Judge Blackstone’s – clearly permissible as a last resort. When the British military tried to undermine that last resort by attempting to seize the Massachusetts colonists’ arms in Concord, the latter resisted – eschewing the slavery of being disarmed and at someone’s mercy of which Burgh had spoken – and what had been a constitutional dispute deteriorated into a shooting war.

5.3. American Constitutions Soon after the Declaration of Independence, the question arose in many of the newly-independent states upon which constitutional foundation the revolutionary state governments were to rest. The royal charters were no longer appropriate frames of government, as the states had just renounced all allegiance to the British monarch. Indeed, four states had acted even before independence had formally been declared: New Hampshire, South Carolina, Virginia and New 599

600

Reid, In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution. Compare Greene, “The Glorious Revolution and the British Empire,” 268. On the incompatibility of British and American constitutional ideas see also Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (Chapel Hill, NC: Published for the Institute of Early American History and Culture Williamsburg, Virginia, by the University of North Carolina Press, 1980) 8-13.

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Jersey enacted provisional constitutions to maintain orderly government procedures until the conflict with Britain would be resolved. By 1780, all but two states had new constitutions; Rhode Island and Connecticut continued to operate under their colonial charters which they had stripped of all monarchical elements.601 What was truly new about the revolutionary constitutions was the fact that all of them were written documents, instead of a mixture of traditions followed since time immemorial and legislative enactments as had been the case with the British constitution. The imperial crisis had made clear that it was difficult enough to establish written rights when the interpretations of the constitution varied greatly, but that it was next to impossible to establish customary but disputed ones. Thus, in addition to putting the new frames of government in writing, the states also took great pains to secure explicitly the rights and liberties of their citizens. It was Virginia which first separated the technical description of the workings of government from the declaration of the citizens’ rights. On 12 June, 1776, the provincial congress passed a declaration of rights into law, ahead of the new state constitution, giving the declaration of rights preeminence over the constitution that succeeded it.602 These bills of rights became a common feature of the newly-framed state constitutions. Of the eleven states which instituted new constitutions during the revolution, seven included a bill of rights of some sort in their enactments.603 A majority of the states found it necessary to include in their constitution a statement on military issues and their relation to citizens’ rights. Most only contained general pronouncements as to the danger of standing armies, the advisability of keeping the militia well disciplined and armed, as well as the exhortation to keep the military subordinate to the civil power. Only three states – Pennsylvania, North Carolina and Massachusetts – included an explicit right to keep and bear arms.604 601

602 603

604

Ibid., 5f. Even before the adoption of new constitutions, the technically extralegal provincial congresses took great pains to maintain orderly governments. Often, they adhered to the forms of the charter governments, lest they be faulted with constitutional innovation. The Continental Congress adopted the same cautious line of action when Massachusetts sought advice, recommending that the charter be adhered to for the time being. Ibid., 53f. Ibid., 5, 72f. Ibid., 68-93. The number goes up to eight of twelve when counting the South Carolina Constitution of 1778, which included a brief list of protected rights. In 1787, New York added a statutory declaration of rights. John Kaminski suggests that the New York bill of rights was primarily directed against a strengthened federal government in response to the impost plans of the 1780s. John P. Kaminski, “A Rein on Government: New York's Constitution of 1777 and Bill of Rights of 1787,” New York Legal History 1, no. 1 (2005): 15f. See Thorpe, Federal and State Constitutions, V:2788 for North Carolina, V:3083 for Pennsylvania and III:1892 for Massachusetts.

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Another novelty in the process of establishing new governments was the constitutional convention. In Britain, where the constitution was an aggregate of custom of time immemorial and legislative enactments, the problem of ‘writing’ a constitution had never arisen. In America, where constitutions were understood to be written documents, giving expressly delineated powers to a government, the primary problem was that of deciding who should be entrusted with drafting a frame of government.605 If the legislature were to enact a constitution during its regular business, the constitution could not be guaranteed to last very long: What the legislature enacted, the legislature could repeal. So, some states settled upon calling conventions specifically and exclusively for the purpose of drafting a constitution, placing it above the powers and beyond the reach of an ordinary legislative assembly. This created another safeguard against the abuse of power in the government, yet it was a safeguard of which not all states availed themselves.606 South Carolina was one of the states that found neither of those precautions necessary in its revolutionary constitutions. Its first constitution, that of March 1776, was a provisional system established in the belief that “until an accommodation of the unhappy differences between Great Britain and America can be obtained, [...] some mode should be established by common consent, and for the good of the people, the origin and end of all governments, for regulating the internal polity of this colony.”607 That constitution was simply enacted by the provincial congress, not by a convention called for the specific purpose, nor was it sanctified by a public referendum. Also, it contained no Bill of Rights: It could be speculated that, as the delegates were still seeking reconciliation with Britain, they still considered themselves under the protection of the English Bill of Rights, and hence found their own unnecessary for the time being. The Constitution of 1778 remedied at least one of those defects. While it was still passed as an act of the assembly, it did contain a declaration of rights. That very modest list was included in the text of the constitution itself and was not in any way separated from the technical enactments regarding the structure of government. It was thus as much subject to being altered, amended or revoked by a simple vote in both houses of the assembly. Among the rights and liberties enumerated was none that would have guaranteed a right to keep and bear arms. Yet, the complex of military powers and the control of arms did not 605 606

607

For the view on constitutions see Adams, First American Constitutions 18-22. Ibid., 63-66. On the phenomenon of the constitutional convention see also John Alexander Jameson, A Treatise on Constitutional Conventions : Their History, Powers, and Modes of Proceeding, 4th , rev., corr., and enl. ed. (Chicago: Callaghan, 1887; reprint, New York: Da Capo Press, 1972); Andrew Cunningham McLaughlin, A Constitutional History of the United States (New York/London: D. Appleton-Century Company Incorporated, 1936) 108-10; Robert J. Taylor, “Construction of the Massachusetts Constitution,” Proceedings of the American Antiquarian Society 90, no. 2 (1980): 317-20. Thorpe, Federal and State Constitutions, VI:3243.

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go unnoticed in that enactment. Article XLII mandated “[t]hat the military be subordinate to the civil power of the State,” which command had the same roots as the more explicit guarantee of arms elsewhere:608 To keep a central authority from exercising too much power. Here, the constitution was limited to an exhortation of principle, while the right to keep arms pretended to contain both the principle and the remedy at the same time. When South Carolina again remodeled its constitution upon the new federal plan in 1790, it did so by way of a constitutional convention rather than by legislative enactment. Again, the document contained a meagre declaration of rights, again without according it any special position: Article VIII guaranteed religious freedom, while article IX protected an assortment of other rights, and article X continued the business of setting the framework of government by describing how the treasury was to be constituted and operated. Again, the article IX only contained the demand that the military was to be kept subordinate to the civil power, yet that admonition was not accompanied by a right to own arms.609 Massachusetts took much longer to write a new constitution, even though it had been among the first states to act in the matter. As early as May of 1775, Massachusetts had sought guidance from the Continental Congress on whether to proceed in adopting a new constitution. At that time, still hopeful for a reconciliation with Britain, Congress had urged Massachusetts to abide by the charter of 1691 for the time being, while assuming the executive offices to be vacant. In the end, Massachusetts postponed the constitution project and continued to operate, as near as it could, under its colonial charter.610 Late in 1776, with independence declared, the makeshift government had outlived its legitimacy. In planning to set up a new constitution, a disagreement developed between the General Court and the towns about the proper procedure. Some towns had demanded a special convention, yet the General Court decided to request special authorization from the electorate for itself to do the job. Over the objection of Boston, the General Court resolved itself into a constitutional convention in June of 1777 and produced a draft constitution in March of 1778.611 The result, voted upon in a referendum in March of 1778, failed to impress the electorate, who let it fall through by a lopsided margin. Among the complaints registered against the constitution, the lack of a declara-

608 609 610 611

Ibid., 3257. Thorpe, Federal and State Constitutions, VI:3264. Adams, First American Constitutions 51-54. For the text of the resolution and Boston’s protest see Oscar Handlin and Mary Handlin, The Popular Sources of Political Authority; Documents on the Massachusetts Constitution of 1780 (Cambridge, MA: Belknap Press of Harvard University Press, 1966) 174-76.

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tion of rights and the belief that the General Court was not the appropriate body to write a constitution featured prominently.612 Massachusetts remedied both defects in its second attempt. The General Court called a constitutional convention – having received an overwhelmingly affirmative vote by their constituents in the matter –, which met in Cambridge in September of 1779. The convention delegated the drafting of a constitution to a committee, which delegated it to a subcommittee in which John Adams ended up doing most of the actual work. Adams prefaced his draft with an extensive declaration of rights, heading off any criticism from that quarter. Indeed, the convention accepted the Adams draft with very few amendments and passed it to the towns for approval or disapproval, article by article. In the end, the votes of the towns proved to be so disparate, that the convention had to use a trick to avoid a second failure in constitution-making: Counting all votes in favor of certain articles together with those that approved in principle yet demanded amendments, the convention declared in June of 1780 that the constitution had received the necessary votes for adoption.613 In its constitution, the Massachusetts convention had heeded the longstanding opposition to standing armies as well as the state’s recent history and experience with British attempts at overawing and disarming the people. The declaration of rights contained a statement enshrining all of those beliefs: “The people have a right to keep and to bear arms for the common defence. And as in time of peace armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military shall always be held in an exact subordination to the civil authority, and be governed by it.”614 The inclusion of this language in the Massachusetts declaration of rights seemed very much like a matter of course: At the beginning of the Revolution, citizens of Massachusetts had resisted British attempts to disarm them, as they saw these efforts as a flagrant violation of their right to be armed and to defend themselves against government oppression. To them, that right had been included in the English Bill of Rights of 1688 and making use of that right had enabled them to fend off the intrusion of their other rights, just as Blackstone had envisioned. It would have been a surprise if Massachusetts, of all states, had not included some sort of guarantee to a right to have arms in its bill of rights. By the late 1780s, Americans had a daily habit of using firearms for one purpose or another. Also, some of them – in the states of Massachusetts, Pennsylvania and North Carolina – had a constitutional right to have arms

612 613 614

Adams, First American Constitutions 86-92; Peters, The Massachusetts Constitution of 1780: A Social Compact 18f; Taylor, “Construction of the Massachusetts Constitution,” 319. Adams, First American Constitutions 92f; Peters, The Massachusetts Constitution of 1780: A Social Compact 20-23. Thorpe, Federal and State Constitutions, III:1892.

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guaranteed to them in their state bills of rights. These different legal situations, as well as the customs of long standing, could not but have a bearing upon the language and tone in which the federal constitution and more especially a federal bill of rights would be discussed. The following chapter will discuss and analyze these influences.

6. Gun Culture, the Constitution and the Bill of Rights

They [the proponents of the constitution] know well the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the Seat of Government, upon whom they mean to exercise the powers granted in that Government. (John De Witt V, DHRC IV:353.) He [James Madison] has hunted up all the grievances and complaints of newspapers, all the articles of conventions, and the small talk of their debates. It contains a bill of rights, the right of enjoying property, of changing the government at pleasure, freedom of the press, of conscience, of juries, exemption from general warrants, gradual increase of representatives, till the whole number, at a rate of one to every thirty thousand, shall amount to ____, and allowing two to every state, at least. This is the substance. There is too much of it. Oh! I had forgot, the right of the people to bear arms. Risum teneatis amici? (Fisher Ames to Thomas Dwight, 11 June 1789, in: Seth Ames (ed.), Works of Fisher Ames: With a Selection from his Speeches and Correspondence. New York: Da Capo Press, 1972, I:53.)

As I have shown in the two previous chapters, guns played a role in American colonial and revolutionary societies very much from the beginnings of European settlement in America. This gun culture was a multi-facetted phenomenon, making its impact among others upon nutrition by the easy availability of game, on military planning depending upon the shape and readiness of the militia, and upon social habits as evidenced in duels and guns serving as status symbols. Yet, perhaps the most profound impact was in constitutional thought. Influenced by English precedent – especially the Bill of Rights of 1688/89 – and the constitutional axioms of the British opposition literature, many Americans believed that the possession of firearms was not only practical and useful, but also a dire necessity and, on top of it all, a political and constitutional right. The making of the revolutionary state constitutions had seen the inclusion of this right in some of the new documents and their respective bills of rights. In the late 1780s, in the debate about the proposed federal constitution the issue of government powers and citizens’ rights gained new virulence. Given the great confidence Americans had in the usefulness of firearms in general and in the defense of the rights of the citizenry in particular, it can hardly be surprising that the issue of which role an armed populace should play in keeping a government on a short leash would surface again. Thus, in the following chapter I will be focusing almost exclusively upon the political connotations of gun culture and upon how they made their entrance

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into the deliberations of political bodies and beliefs of the politically articulate population. That, however, does not mean that all the other facets of gun culture would be irrelevant in the political arena: Quite on the contrary, the immense faith people had in the political implications of guns – that is that they would serve well to keep a government under control – is intimately connected to their widespread availability and the fact that people were comfortable with their widespread use and existence. Thus, even though not all aspects of gun culture at the time were openly and visibly charged with political meaning, the gun culture in its entirety had a political significance which carried over into the political and constitutional debates of the 1780s and early 1790s. To show how that worked is the purpose of what follows.

6.1. The Right to Bear Arms in the Constitutional Convention A right to keep and bear arms did not – as far as we can tell – play an explicit role in the constitutional convention. Bent, as the convention was, upon giving more power to the federal government, the idea of a bill of rights was only touched upon once, and briefly at that. Very late in the convention, on 12 September 1787, George Mason expressed his wish that “the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose.” In his opinion, “[i]t would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.”615 When Elbridge Gerry, seconded by Mason, made the motion to add a bill of rights to the constitutional draft, the issue was voted down, apparently with very little debate.616 This defeat, however, does not mean that none of the other questions closely related to the issue of the armed populace received any debate, either. On more than one occasion, members of the convention criticized the power of raising and maintaining armed forces to be vested in the federal government. There was potential for danger in this, argued even James Madison: “Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people,” and Elbridge Gerry “took notice that there was no check here agst standing armies in time of peace.”617 Taking to heart these objections – which were, as I have shown in the previous chapters, common among the population at large – Charles Pinckney of South Carolina proposed among oth-

615 616 617

Max Farrand (ed.), The Records of the Federal Convention of 1787. Revised Ed. 4 Vols. New Haven, CT: Yale University Press, 1937, 12 September 1787, II:587. Ibid, 588. Ibid., 29 June 1787, I:465; 18 August 1787, II:329.

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ers that a clause be included in the constitution stating that “[t]he military shall always be subordinate to the Civil power.”618 Yet as many delegates agreed, despite opposition to standing forces, that it was unwise to limit too tightly the military preparations of the federal government, the question mostly revolved around how to prepare the militia to be an adequate defense of the nation. “[A]s the greatest danger to liberty is from large standing armies,” argued James Madison, “it is best to prevent them, by an effectual provision for a good militia.”619 The federal government’s power over the militia excited considerable debate in the convention and disagreement persisted as to how much power over the militia it might be safe to lodge in the federal government and how much the states would be willing to give up.620 In the end, three members refused to sign the draft constitution. Especially George Mason and Elbridge Gerry had been highly critical of the virtually unlimited powers of the federal government in general and the provisions of military powers in particular. Most of his objections, stated Gerry, he could have laid aside “if the rights of the Citizens were not rendered insecure 1. by the general power of the Legislature to make what laws they may please to call necessary and proper. 2. raise armies and money without limit.”621 In spite of the objections of Gerry, Mason, and Edmund Randolph, the convention passed the draft constitution and sent it to Congress. The three dissenters, however, would play a major role in opposing the constitution in its ratification process. The objection to the military issues would be central in their critique of the document.622

6.2. Beginning the Ratification Process When the constitutional convention adjourned sine die on September 17, 1788, it had already overcome many obstacles which might have doomed the attempt to restructure the confederation. Only “a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable,” as George Washington wrote to the president of Congress on behalf of the convention, had made it possible to overcome the “difficulty 618 619 620 621 622

Ibid., 20 August 1787, II:341. Ibid., 23 August 1787, II:388. Ibid., 18 August 1787, II: 326, 330-333, 341; 23 August 1787, II:384-388. Ibid., 15 September 1787, II:633. The impact the Antifederalists made upon constitutional debate, constitutional interpretation, the formation of the Bill of Rights and political culture of the early republic has been recognized most extensively in Saul Cornell, The Other Founders: AntiFederalism and the Dissenting Tradition in America, 1788-1828 (Chapel Hill, NC: Published for the Omohundro Institute of Early American History and Culture, Williamsburg, Virginia, by the University of North Carolina Press, 1999).

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[which] was increased by a difference among the several States as to their situation, extent, habits, and particular interests.”623 However, the Constitution would still have major hurdles to straddle, as not everybody was happy with the convention’s work. Richard Henry Lee and Melancton Smith, for example, attempted to change the proposed method of ratification. In accordance with the Articles of Confederation, Lee moved to submit the plan to the state legislatures rather than to ratifying conventions.624 Despite such objections, Congress in the end decided to follow the Constitutional Convention and submitted the proposal to ratifying conventions, neither approving nor disapproving of the plan.625 In the meantime, a public debate on the merits of the constitution had begun, constituting probably the most wide-ranging public discussion of a constitution ever. All possible aspects of the draft were subject to intense scrutiny in private correspondence as well as in the newspapers. The main focus of the debate were probably questions of separation of powers and checks and controls of the government, but the issue of a bill of rights was an important one from the very beginning. George Mason, a delegate from Virginia and one of three members who had declined to sign the Constitution accepted by the convention, introduced his critique of the plan by saying that “[t]here is no Declaration of Rights.”626 Since Mason had been the author of Virginia’s 1776 Declaration of Rights – a declaration that had extolled the value of a well-trained militia – his refusal to sign carried considerable weight. Opponents of the Constitution everywhere began to echo Mason’s charge, knowing that so important an oversight combined with the greatly augmented powers of the federal government would reduce the chances of the Constitution being ratified. Nonetheless, the process of ratification was getting under way.

6.3. Pennsylvania Pennsylvania was the first state to take action. On September 28, only eleven days after the Constitutional Convention had adjourned and without having been officially notified of Congress’ action on the proposed Constitution, George Clymer moved to call a ratifying convention in the Assembly.627 Some members objected, arguing that “The House [...] ought to have time to consider 623 624 625 626

627

JCC, 20 September 1787, XXXIII:502. JCC, 27 September 1787, XXXIII:540f. JCC, 28 September 1787, XXXIII:549. George Mason’s Objections to the Constitution, 7 October 1787, in: DHRC XIII:348. See also Kenneth R. Bowling, ““A Tub to the Whale”: The Founding Fathers and the Adoption of the Federal Bill of Rights,” Journal of the Early Republic 8, no. 3 (1988). PA Assembly Debates, 28 September 1787 A.M., in: DHRC II:68f.

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on this subject before they determine.”628 Despite such protestations, the majority in the Assembly continued to pursue an early convention. In the end, the opposing members saw no other way out than to abscond from further deliberations, hoping to prevent a quorum. The majority then forcibly brought two members into the chambers, obtained a roll call and went on to pass a motion calling for elections of convention delegates together with the annual elections of assemblymen.629 In the Pennsylvania convention, which met on 20 November, the Federalists, certain of their considerable majority, continued their uncompromising stance. Even though the constitution was to be discussed article by article, votes were only to be taken on the whole.630 Robert Whitehill, one of the most significant antifederalist speakers, submitted a draft for a bill of rights to the consideration of the convention, which, among others, contained a proviso stating “[t]hat the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals.”631 The motion was defeated, however, and the Federalist majority then forced a vote, carrying the motion to “assent to and ratify the Constitution” by 46 yeas against 23 nays.632 The next morning, Robert Whitehill protested that his motion for a bill of rights had not been entered in the journals but was again defeated.633 The delegates then proceeded to the Court House where they proclaimed Pennsylvania’s ratification. The next two days the convention debated a land cession for a seat of government, settled its accounts and ordered its records published before adjourning sine die on 15 December.634 Yet, the debate in Pennsylvania was not over: On 18 December, 21 of the 23 opposition members published the reasons for their dissent, which they had not been allowed to enter in the convention journals. This Dissent of the Minority became one of the foundations of antifederalist opposition all over the country and one of the most widely reprinted antifederalist documents.635 It carried abroad the minority’s ideas not only about where the constitution was defective, but also its ideas of how these defects might be remedied; and a right to arms was one of their propositions. The Dissent was widely and enthusiastically received. Many newspapers printed letters, congratulating the minority members for their stance, warning of 628 629 630 631 632 633 634 635

Ibid., 69. PA Assembly Debates, 29 September 1787, in: DHRC II:103-110. PA Convention Debates, 26 November 1787, in: DHRC II: 364ff. Ibid., 12 December 1787, in: DHRC II:597f. PA Convention Proceedings, 12 December 1787, in: DHRC II:590f. PA Convention Debates, 13 December 1787, in: DHRC II:603f. PA Convention Proceedings and Debates, 14/15 December 1787, in: DHRC II:610-614. Dissent of the Minority, 18 December 1787, in: DHRC II:617ff.

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“[d]iscontent, indignation, and revenge [which] already begins to be visible in every patriotic countenance; and civil discord already raises her sneaky head.”636 A riot broke out in Carlisle in late December and in January antifederalists began a petition campaign to have the Assembly repudiate the convention’s action. Thus, even though Pennsylvania went through its ratification in remarkably short time, choices made in the process continued to have considerable impact on other states. For Pennsylvania federalists, it may have seemed easy and expedient to take full advantage of their majority to force a swift ratification of the constitution. In the long run, however, this heavy-handed approach made it more difficult to convince doubters of the merits of the constitution.

6.4. Massachusetts Those difficulties began to show very clearly in Massachusetts. While Delaware, New Jersey, Georgia and Connecticut had ratified quickly and without much debate, it would be there that the constitution would be put to its first real test. Massachusetts was not only the first populous and economically significant state since Pennsylvania to proceed to ratification, but it also contained the metropolis of Boston, one of the culturally and politically most important centers of the Confederation. After the events of Pennsylvania, the Philadelphia Independent Gazetteer had suggested that it was “part of wisdom in some of the states who have not yet adopted the new Constitution, to pause a while before they proceed to the ratification of it.”637 In Massachusetts, the way Federalists had achieved ratification in Pennsylvania made the Constitution suspect to many. ‘Agrippa’ certainly hit a nerve when he voiced his opinion: Nobody can suppose that the consent of a state is any thing more than a fiction, in the view of the federalists, after the mobbish influence used over the Pennsylvania assembly. The two great leaders of the plan [James Wilson and Thomas McKean], with a modesty of Scotsmen, placed a rabble in the gallery to applaud their speeches, and thus supplied their want of capacity in the argument.638

636

637

638

An Address to the Minority of the Convention, Carlisle Gazette, 2 January 1788, in: DHRC II:652. See also Independent Gazetteer, 22 January 1788, in: DHRC II:657f; An Address of Thanks, Freeman’s Journal, 13 February 1788, in: DHRC II:661ff. Independent Gazetteer, 22 January 1788, in: DHRC II:657. The Independent Gazetteer itself changed its position after the Pennsylvania events. Having entered the ratification debate as a neutral, its publisher Eleazer Oswald became a staunch antifederalist after midNovember 1787. DHRC II:37f. Agrippa XII, 15 January 1788, in: DHRC V:725f.

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Even people who had initially favored the constitution were put off by the Pennsylvania shenanigans, as Thomas B. Wait revealed in a letter to Federalist George Thatcher: On reception of the Report of the [Constitutional] Convention, I perused, and admired it: [...] On the unprecedented Conduct of the Pennsylvania Legislature, I found myself disposed to lend an ear to the arguments of the opposition – not with an expectation of being convinced that the new Constitution was defective; but because I thought the minority had been ill used; and I felt a little curious to hear the particulars. The address of the Seceders was like the Thunder of Sinai – it’s lightnings were irresistable; and I was obliged to acknowledge, not only that the conduct of the majority was highly reprehensible, but that the Constitution itself might possibly be defective. – My mind has since been open to conviction – I have read & heard every argument, on either side, with a degree of candour, of which I never, on any other occasion, felt myself possessed – And, after this cool and impartial examination I am constrained – I repeat it, my dear friend – I am constrained to say, that I am dissatisfied with the proposed Constitution.639

It was thus in a somewhat poisoned atmosphere that Massachusetts began debating the Constitution. The debate began in earnest after 25 September, the day the constitution was first printed in the state.640 In the discussions, private as well as official, the lack of a bill of rights became an issue very early on. Elbridge Gerry, in his letter to the General Court explaining his conduct in Philadelphia, stated “that the system is without the Security of a Bill of rights [sic],” and even John Adams asked Thomas Jefferson: “What think you of a Declaration of Rights? should [sic] not such a Thing have preceeded [sic] the Model?”641 Antifederalist commentators seized on the omission of a bill of rights as a touchstone of their criticism. “I shall begin my observations,” wrote ‘Portius,’ with that which I conceive every Constitution should begin with, viz. a Bill of Rights; this we search for in vain in the proposed Foederal System. When the proposed System came first to my hands, I made diligent search for that article, but searched to no purpose; why it was omitted was a question of too delicate a nature for me to determine.642

639 640 641

642

Thomas B. Wait to George Thatcher, 8 January 1788, in: DHRC V:645. That was in the Springfield Hampshire Chronicle. The first printing in Boston occurred on 26 September in the Massachusetts Centinel. See DHRC IV:18. Elbridge Gerry to the General Court, 18 October 1787, in: DHRC IV:99; John Adams to Thomas Jefferson, 10 November 1787, in: DHRC IV:212. See also John Adams to Cotton Tufts, 12 February 1788, John Adams, 1775-1819, Misc. Mss. Folder, NHi. Ratification Files. Portius, American Herald, 12 November 1787, in: DHRC IV:216f. See also Vox Populi, Massachusetts Gazette, 16 November 1787, in: DHRC IV:251ff.

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The Federalists’ arguments that on the one hand the Constitution would only allow the federal government strictly circumscribed powers and that on the other hand the states’ bills of rights would afford the people sufficient security did not convince most antifederalists. Looking at Massachusetts, “we shall find the powers vested in the General Court as particularly defined, as those with which Congress is proposed to be vested with, are in the Foederal Constitution, – yet it was deemed absolutely necessary, that our State Constitution should be prefaced with an unalterable Bill of Rights [...].”643 “The second reason given,” opined “Vox Populi,” “why it was omitted, I think cannot have much greater force than the former; we may as well say, that because each state has a constitution its own, that a continental constitution was unnecessary, as to say that because we have a state bill of rights a continental one is unnecessary.”644 These warnings had to be taken all the more seriously, Antifederalists pointed out, because the constitution was to be superior to all state constitutions and laws.645 Under these circumstances opponents of the constitution feared that even the state governments could not survive very long: Other than securing the citizens’ rights, it would also have protected the states in their legislative rights from encroachments by the federal government: Such a declaration ought to have come to the new constitution in favor of the legislative rights of the several states, by which their sovereignty over their own citizens within the state should be secured. Without such an express declaration the states are annihilated in reality upon receiving this constitution – the forms only will be preserved during the pleasure of Congress.646

The prospect of the annihilation of the states boded particularly ill for the Antifederalists. For them, the states were guarantors of the rights and liberties of the people. Any federal government would be far less suited to that task, as it was considered axiomatic that republican forms of government could not be successfully maintained over large territories.647 Thus, with the states facing the fall into insignificance and no bill of rights, sooner or later there would be no 643 644 645

646 647

Portius, American Herald, 12 November 1787, in: DHRC IV:217. Vox Populi, Massachusetts Gazette, 16 November 1787, in: DHRC IV:252. Constitution Art. 6, Sec. 2. See also One of the Common People, Boston Gazette, 3 December 1787, in: DHRC IV:368; American Herald, 14 January 1788, in: DHRC V:711; Agrippa XII, Massachusetts Gazette, 15 January 1788, in: DHRC V:722. Agrippa VI, Massachusetts Gazette, 14 December 1787, in: DHRC IV:427. See for example Thomas Wait to George Thatcher, 22 November 1787, in: DHRC IV:295; Agrippa IV, Massachusetts Gazette, 4 December 1787, in: DHRC IV:382. Received from Hume and Montesquieu, James Madison was one of the first people to question the truth of this widely held tenet. See Federalist 10, in: DHRC XIV:175-182, especially 180f; and Heideking, Die Verfassung vor dem Richterstuhl 338-41.

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means “to secure the minority against the usurpation and tyranny of the majority.”648 Despite the fact that so many complaints about the lack of a bill of rights in the Constitution exist, the influence of these complaints on the election of Convention delegates is very hard to judge. This is mainly a problem of sources, as very often we have some idea of the proceedings of the town meetings at which delegates were elected, but only very rarely do we find good evidence of the actual debates that may have taken place. The best bet might be to look at the instructions towns gave their representatives, as they very often not only contain orders on how to vote in a particular situation, but frequently also the reasoning that led to those conclusions. In the case of Massachusetts and its ratifying convention, that still does not give us a complete picture, since only few towns – contrary to the usual practice – instructed their representatives.649 However, some towns did issue instructions, Belchertown being one. In the preliminary instructions, the town found “great merit in many Respects” in the proposed constitution and stated their belief that “by Proper amendments [it] may be adapted to the Exigencies of Gouverment [sic] and the Preservation of Liberty.”650 Then, the instructions listed the faults, finding “3dly that the System is without a Bill of rights to secure the Priveledges [sic] of the People which article we think of the greatest Importance and a bill of rights we think ought to be Established before the Constitution takes Place.”651 In the final instructions, this complaint was moved to the beginning of the list, underlining the centrality of the issue.652 Some other towns reasoned much along the same lines. The town of Harvard instructed its representative to give a “negative vote” on the question of “[w]hether the proposed Constitution shall be adopted or not.” This decision the town rested upon “many objections,” “the most material ones” of which they listed, again putting the lack of a bill of rights in first place.653 Like those of Harvard, the people of Townshend voted not to accept the Constitution without amendments.654 In their instructions, again, they pointed out that they viewed a Bill of Rights “as a matter of unspeeakable [sic] importance,”655 648 649

650 651 652 653 654 655

Agrippa XVI, Massachusetts Gazette, 5 February 1788, in: DHRC V:863. The towns of Ashfield, Becket, Belchertown, Bernardston, Bristol, Cummington, Fryeburg, Great Barrington, Harvard, Northampton, Oakham, Palmer, Partridgefield, Paxton, Rutland, Sherburne (Middlesex), Spencer, Sturbridge, Sunderland, Sutton, Taunton, Tewksbury, Townshend and Ware instructed their delegates. DHRC V:890f. For the extant texts of instructions see ibid., 896-1076. Belchertown Preliminary Instructions, 17 December 1787, in: DHRC V:901. Ibid. Belchertown Final Instructions, 17 December 1787, in: DHRC V:902. Harvard Instructions, 17 December 1787, in: DHRC V:968. Townshend Town Meeting, 24 December 1787, in: DHRC V:1055. Townshend Instructions, 31 December 1787, in: DHRC V:1056.

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informing their delegate that “we must insist that the Continental Constitution Contain a Bill of Rights.”656 Despite such strong positions, the question of a Bill of Rights played a very marginal role during most of the debates in the ratifying convention. Most of the Antifederalists focused on more even substantial objections, such as weak representation, long terms of office and the seemingly limitless powers of Congress. Then, towards the end of the convention, with ratification still very uncertain, it was the Federalists who brought up the idea again. They suggested to annex an act of ratification with a number of recommendatory amendments, which would have something of the character of a bill of rights: “I am pretty well satisfied that we shall loose [sic] the question [of whether to ratify or not] – unless we can take of[f] some of the opposition by amendments,” opined Nathaniel Gorham on 27 January.657 The Federalists planned to ask John Hancock, who was widely accepted on both sides of the question, to present the amendments as a conciliatory gesture, suggesting that he would benefit politically from it. Accordingly, Hancock presented a form of ratification together with nine recommendatory amendments in the afternoon of 31 January. After two days of debate on the proposition, the convention voted to submit Hancock’s and any possible other amendments to a committee. Over an Antifederalist attempt at adjournment, the convention accepted the committee’s report and ratified the constitution 187 to 168 in the evening of 6 February.658 Frequently during the ratification process, antifederalists had raised the prospect of the new government turning tyrannical. Despotism, they argued, was rooted in the disturbed balance of strictly limited – a bill of rights was one such limit – government power and a population that was both jealous of and able to defend its rights. In that picture, an armed populace was as indispensable to the equilibrium as a short leash on government power. In the 1780 Massachusetts Constitution, Article 17 of the prefatory bill of rights had guaranteed the people “a right to keep and bear arms for the common defence,” at the same time declaring that “in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil power and be governed by it.”659 Neither of these tenets would be observed under the new constitution, argued its opponents. Thus, it seemed obvious to many antifederalists that the constitution “will not work on free principles – it must be supported by a standing Army.”660 Centinel suspected likewise: “[A] government founded on fraud and deception 656 657 658 659 660

Ibid., 1057. Nathaniel Gorham to James Madison, 27 January 1788, in: DHRC VII:1552. Convention Journal/Form of Ratification, 6 February 1788, in: DHRC VI:1463-1471. MA Constitution, Part I, Art. XVII, in: Thorpe, Federal and State Constitutions, III:1892. Debates of Congress, 27 September 1787, in: DHRC XIII:232.

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could not be maintained without an army sufficiently powerful to compel submission.”661 By military force, the federal government would be able to control every aspect of the lives of the citizens. Taxation would be boundless, as citizens would have no way of escaping “the insults of military collectors, who will, by the magnetism of that most powerful of all attractives, the bayonet, extract from their pockets (without their consent) the exorbitant taxes imposed on them.”662 Furthermore, the Antifederalists conjectured, there would not “be any security which any citizen of this Commonwealth [of Massachusetts] will have, that his house shall not be made a barrack of, to entertain a standing army in time of peace.”663 The fact that the federal government under the Constitution was also to have the command of the state militias seemed to make the plan for tyranny perfect. By using the militia of one state to suppress the population of another, “may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow citizens, and on one another.”664 Even if such extreme measures were not used, federal authority over the militia would likely prove detrimental. What, for example, would the states and the state-appointed officers do, “if they [i.e. the federal government] in their pleasure should choose to neglect to arm, organize and discipline the men over whom such Officers are to be appointed”?665 Finally, however, the government under the Constitution would have to make sure that not only the organized militia, but also the population as such would not be able to offer a significant amount of resistance: “They know well the impolicy of putting or keeping arms in the hands of a nervous people, at a distance from the Seat of Government, upon whom they mean to exercise the powers granted in that Government [under the Constitution].”666 Believing firmly in the mechanism of limited state power and tight citizen control as evidenced, among others, in a ban on standing armies and guarantees for the militia and a right to bear arms, Antifederalists attempted to write these securities into the amendments proposed by the Massachusetts convention. Towards the end of the convention, when the amendments proposed by John Hancock and reported by a Committee were under consideration, Samuel Adams moved to add that the said Constitution be never construed to authorize Congress, to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing

661 662 663 664 665 666

Centinel VIII, 2 January 1788, in: DHRC XV:233. A Son of Liberty, 8 November 1787, in: DHRC XIII:482. American Herald, 14 January 1788, in: DHRC V:712. Dissent of the Minority, 18 December 1787, in: DHRC XV, 33. John De Witt V, American Herald, 3 December 1787, in: DHRC IV:354. Ibid., 353. It should be noted that “nervous” historically meant “strong” and “forceful.”

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armies, unless when necessary for the defence of the United States, or of some one or more of them.667

The motion, however, “gave an alarm to both parties”:668 The Antifederalists assumed that there must be real danger on these points, because otherwise Adams would not have made his motion, while the Federalists feared that Adams might have “overset the apple-cart by intruding an amendment of his own fabrication,” afraid that the barely-obtained majority for their conciliatory amendments might crumble.669 Federalists were generally aware of how dangerous the allegations about introducing standing armies and disarming the populace could be to their political prospects and hence to the prospects of ratifying the Constitution. During the process of election delegates, Federalist Theodore Sedgwick complained to his correspondent Henry Van Schaack that his opponent John Bacon was using these fears to campaign against the constitution. Bacon was making every possible exertion & by the meanest and basest arts stimulating pub[l]ick passions. He says that it will be a government for great men & law[y]ers. That people will be disarmed. That a standing army will be imediatly [sic] formed &ca. &ca. &ca. With these suggestions & insinuations he goes from house to house. – For God sake come down – I think at present that the friends of the government are gaining ground but appearances can be deceitful.670

Later, in the convention, Sedgwick found himself confronted with similar arguments again. By suggesting that he thought it highly doubtful whether a standing army “could subdue a nation of freemen, who know how to prize liberty; and who have arms in their hands,” Sedgwick scored a powerful point:671 He did not believe that the people could be disarmed and also directly enlisted the armed populace for the defense of the Constitution, making their contribution seem all the more indispensable. By embracing the concept of the armed populace, he very much stole the Antifederalists’ thunder. Nonetheless, many Federalists remained deeply uneasy with a too broadlydefined right to arms. The memory of Shays’ Rebellion, where an armed populace had brought Massachusetts to the brink of collapse and civil war, was still 667 668 669 670

671

Convention Journal, 6 February 1788 A.M., in: DHRC VI:1453. Jeremy Belknap’s Notes on Convention Debates, 6 February 1788, in: DHRC VI:1490. Jeremy Belknap to Ebenezer Hazard, 10 February 1788, in: DHRC VII:1583. See also Jeremy Belknap’s Notes on Convention Debates, 6 February 1788, in: DHRC VI:1490. Theodore Sedgwick to Henry Van Schaak, 28 November 1787, in: DHRC V:1035. Sedgwick was elected in Stockbridge with a great majority. Even John Bacon admitted that Sedgwick’s arguments in defense of the Constitution made good sense and pledged his support in a letter to Sedgwick on 1 December 1787. John Bacon to Theodore Sedgwick, 1 December 1787, in: DHRC V:1036. On this conflict see also DHRC V:1034. Convention Debates, 24 January 1788 A.M., in: DHRC VI:1337.

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too fresh. The Shaysites had argued that, the government having gone tyrannical, their use of arms in defense of their liberties was legitimate. For many who had been opposed to Shays and who were now supporting the constitution, that logic reeked of anarchy. Hence, many Federalists, for whom ‘Shaysite’ and ‘Antifederalist’ were almost synonymous terms, were probably lukewarm at best about writing such guarantees into a federal bill of rights.672 It is likely with these considerations in mind, too, that the Federalists in Massachusetts defeated Samuel Adams’s amendment. However, with its act of ratification, the question of a bill of rights was out of the hands of Massachusetts politicians. Massachusetts was the first state that annexed its Form of Ratification with recommendatory amendments, at the same time voting to “enjoin it upon their [future] Representatives in Congress at all times until the alterations & provisions aforesaid have been considered [...] to exert all their influence & use all reasonable & legal methods to obtain a ratification of the said alterations & provisions.”673 Doing that, Massachusetts set a precedent which presumably enhanced the chances for ratification. States which had hitherto been hesitant would have an elegant way of obtaining ratification and at the same time making sure their objections would be heard. After Massachusetts had ratified, Maryland would be the only state to ratify the constitution without proposing amendments.674 The North Carolina convention even refused to ratify at all until amendments would be obtained. The “Massachusetts mode of Ratification” would be the paradigm for the other states thereafter.675

6.5. South Carolina At the time the Constitution first came under consideration in South Carolina, the Massachusetts convention was still caught up in the middle of deliberations and the outcome was nowhere near certain. In a unique move among the states, the legislature of South Carolina debated the constitution with considerable latitude before unanimously voting to call a convention on 18 January 1788.676 672

673 674 675 676

On Antifederalists being likened to Shaysites, see for example Boston Gazette, 15 October 1787, in: DHRC IV:80; Lycurgus, Massachusetts Gazette, 23 October 1787, in: DHRC IV:114; Henry Jackson to Henry Knox, 18 November 1787, in: DHRC IV:264; James Madison to Tench Coxe, 20 January 1788, in: DHRC V:753; Timothy Pickering to Charles Tillinghast, 24 December 1787, in: DHRC V:1085; Nathaniel Gorham to James Madison, 27 January 1788, in: DHRC VII:1552. Form of Ratification, 6/7 February 1788, in: DHRC VI:1470. Federalists in Maryland had been prepared to suggest some amendments, however, differences about the extent of such amendments scuttled that project. See below. Quoted in Heideking, Die Verfassung vor dem Richterstuhl 652. Ibid., 154-56.

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The issues raised by Antifederalists in South Carolina were very diverse and depended considerably on their local and economic interests. Rawlins Lowndes, probably the most prominent antifederalist in the House of Representatives, focused his criticism on what he perceived as a overarching influence of New England: “[...T]he interest of the Northern States would so predominate as to divest us of any pretensions to the title of a republic.”677 To that end, he argued, they had made sure that the source of their wealth would not be burdened, but that others would pay instead. The tax on importing slaves and the option of closing the slave trade altogether, would have a catastrophic impact on South Carolina: Even in granting the importation for twenty years, care had been taken to make us pay for this indulgence, each negro being liable, on importation, to pay a duty not exceeding ten dollars; and, in addition to this, they were liable to a capitation tax. Negroes were our wealth, our only natural resource; yet behold how our kind friends in the north were determined soon to tie up our hands, and drain us of what we had! The Eastern [i.e. North-Eastern] States drew their means of subsistence, in a great measure, from their shipping; and, on that head, they had been particularly careful not to allow any burdens: they were not to pay tonnage or duties; no, not even the form of clearing out: all ports were free and open to them! Why, then, call this a reciprocal bargain, which took all from one party, to bestow it on the other!678

In addition to problems in the regulation of trade, Lowndes critized the makeup and the powers of Congress. The Senate, for example, might pass treaties by as few as ten votes: “Was it consistent with prudence to vest so much power in the hands of so small a body of men, who might supersede every existing law in the Union? Here he read the 2d clause in the 6th article of the Constitution [i.e. the supremacy clause].”679 Furthermore, Lowndes argued that the South was not sufficiently well represented in Congress, observing that “six of the Eastern States formed a majority in the House of Representatives.”680 The fact that the interests of North and South were so different made this seem like a precarious arrangement. Lowndes feared that “when this new Constitution should be adopted, the sun of the Southern States would set, never to rise again.”681 During the debates in the South Carolina House of Representatives, the lack of a bill of rights only played a relatively minor role, assuming nowhere near the 677

678 679 680 681

SC House Debates, 16 January 1788, in: Elliot, Debates, IV:272. See also George C. Rogers, “South Carolina Ratifies the Federal Constitution,” Proceedings of the South Carolina Historical Association 1961 (1962): 58. SC House Debates, 16 January 1788, in: Elliot, Debates, IV:273. Ibid., 265. Ibid., 272. Ibid.

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influence it had had in Massachusetts. Nonetheless, when the argument was presented, it looked quite similar to the combination of too much delegated power in the hands of too few men, military force, and the lack of a bill of rights. It was brought up by James Lincoln, a delegate from the backcountry district of Ninety-Six, whose suspicion was aroused by the provision that the federal government should guarantee the states of the union a “a republican form of government.”682 “But pray, who are the United States? – A President and four or five senators? Pray, sir, what security have we for a republican form of government, when it depends on the mere will and pleasure of a few men, who, with an army, navy, and rich treasury at their back, may change and alter it as they please?”683 The oath of office would certainly not present any security, argued Lincoln, as it had not in the case of the English king: “[W]hat security have we that a future President and four or five senators – men like himself – will think more solemnly of so sacred an obligation than he [i.e. the king of England] did?”684 The situation would, in Lincoln’s opinion be very much exacerbated by the fact that a bill of rights did not precisely declare the rights of the citizens: “Why was not this Constitution ushered in with the bill of rights? Are the people to have no rights? Perhaps this same President and Senate would, by and by, declare them[.] He much feared they would.”685 Despite such opposition to the Constitution in the House of Representatives, the Antifederalists did not really stand a chance. Rawlins Lowndes had to fight the opposition’s cause almost alone, only occasionally did other speakers chime in to support him.686 When the vote came on the motion to call a convention, it was unanimously in favor. Lowndes had hopes that, during the convention, it might be possible to amend the Constitution, knowing, however, that he would very likely not be a member of such a convention: His constituents were largely in favor of the constitution and would probably not elect him as their delegate.687 While all representatives could agree to call a convention, the question of where it should be held was fiercely contested. As interests were largely divided along geographical lines, that question was predestined to be a major bone of contention: “The back country interest is as large as the lower, and they are pretty unanimous in the opposition, and the lower country is divided; the first oppose it from principle, and the latter from paper money interest, as all the lower country are in favor of paper money,” wrote a Charleston correspondent

682 683 684 685 686 687

U.S. Constitution, Art. IV, Sec. 4. SC House Debates, 18 January 1788, in: Elliot, Debates, IV:314. Ibid., 314f. Ibid., 315. See Nadelhaft, “South Carolina: A Conservative Revolution,” 173. SC House Debates, 16 January 1788, in: Elliot, Debates, IV:274.

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of the Philadelphia Independent Gazetteer.688 Accordingly, a backcountry location would benefit the upcountry interest, as it would be more easily accessible to them, while in Charleston, lowcountry Federalists could proselytize among the opposition members on social occasions.689 When the question was put, the upcountry party lost by the narrowest of all margins, 76-75. Hence, the convention would take place in Charleston and was set to begin on May 12, 1788.690 The elections for convention delegates took place on 11 and 12 April. At that time, however, the situation was not yet entirely clear: “It is difficult to say what will be the fate of the plan in this state convention, but I am in hopes it will be rejected. Was the final question taken in the lower house of assembly it would have been rejected by near two thirds,” the Independent Gazetteer quoted a letter from Charleston. Everything would depend on the participation of the backcountry delegates: “But the aristocratics feed themselves with the hopes that the back members will not come down, as it is about harvest time when the convention meets.”691 The lowcountry politicians saw the situation in a somewhat rosier light, as John Rutledge Jr. assured Thomas Jefferson: His correspondents wrote “that they had not received returns from the Country but that in the City & the neighbouring Districts the Elections had been made with very great judgement & that it was very certain that the new Constitution will be accepted.”692 Yet, the situation in South Carolina, but also for the rest of the nation would continue in limbo a little longer. Since January, much had happened on the path to ratification, giving hope to both Federalists and Antifederalists. On February 6, Massachusetts had ratified the constitution, but not without proposing amendments. New Hampshire had held a convention in February, which, on the 22nd, had adjourned without ratifying the constitution. Rhode Island had held a referendum in which the constitution was rejected by the impressive margin of 239 in favor to 2711 opposed. The failures of New Hampshire and Rhode Island had caused great alarm among the Maryland Federalists who were fearing for the overall success again. Hence, they forced the matter, putting aside all political decorum. In the end, Maryland ratified clearly by 63 to 11, without suggesting even those conciliatory amendments which had been debated briefly in the convention.693 The South Carolina Federalists were not fully convinced that they could carry the question of ratification and were “doubly anxious for the vote of our

688 689

690 691 692 693

Independent Gazetteer, 19 April 1788, p. 3. Aedanus Burke to John Lamb, 23 June 1788, in: DHRC XVIII:55ff. See also Heideking, Die Verfassung vor dem Richterstuhl 650; Nadelhaft, “South Carolina: A Conservative Revolution,” 173. SC House Debates, 19 January 1788, in: Elliot, Debates, IV:316f. Independent Gazetteer, 19 April 1788, p. 3. John Rutledge Jr. to Thomas Jefferson, 22 June 1788, in: Jefferson Papers XIII:283. Heideking, Die Verfassung vor dem Richterstuhl 648.

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State to be in favor of it.”694 When the convention assembled, however, the Federalists were able to count a slim majority in favor of ratification.695 On 13 May the convention was ready to take up business, having had to adjourn for one day after not finding a quorum on the 12th.696 The 13th and 14th were largely taken up by preparations for regular business such as electing officers, drawing up rules and deciding disputed elections.697 The Antifederalists suffered from the loss of their most vocal proponent, Rawlins Lowndes. As he had predicted, he had not been elected by his lowcountry constituents, and he declined an election in St. Bartholomew’s Parish.698 The arguments, however, that the opposition brought against the constitution were similar to those offered by Lowndes in January: The North-Eastern states would be too powerful, especially if the President were also to be elected from them.699 Furthermore, delegate Peter Fayssoux objected to the unlimited possibility of reelection and the fact the Congress would have control over their own salaries.700 Judge Aedanus Burke focused his criticism on the President – “a prince under a republican cloak”701 – and the Senate, from the combination of which he expected tyranny and despotism.702 Accordingly, it was in this direction that they attempted to amend the constitution. On 22 May, the convention appointed a committee to suggest amendments to be submitted along with ratification, following in the path Massachusetts had opened. When the committee reported, Aedanus Burke offered a resolution to amend the committee’s report to state that the eligibility of the President after the expiration of Four Years, is dangerous to the Liberties of the people, calculated to perpetuate in one person during life the high authority and influence of that Magistracy in short time to terminate in what the good people of this state highly disapprove of [:] An hereditary Monarchy.703

Burke’s motion was roundly defeated, only 68 voting in favor, 139 against.704 Two other motions, one to make the prohibition on titles of nobility absolute 694 695 696 697 698

699 700 701 702 703 704

David Ramsey to Benjamin Lincoln, 31 March 1788, Lincoln Papers, MHi. Ratification Files. Heideking, Die Verfassung vor dem Richterstuhl 649. SC Convention Journal, 12 May 1788, 1. See also CMP/CG, 13 May 1788, p. 2. SC Convention Journal, 13/14 May 1788, 1-9. See also CMP/CG, 14 May 1788, p. 2 and 16 May 1788, p. 2. SC Convention Journal, 14 May 1788, 6f. See also Nadelhaft, “South Carolina: A Conservative Revolution,” 173.; Aedanus Burke to John Lamb, 23 June 1788, in: DHRC XVIII:55ff. Peter Fayssoux in SC Convention, CMP/CG, 17 May 1788, p. 2. Ibid., 19 May 1788, p. 2. Aedanus Burke in SC Convention, CMP/CG, 21 May 1788, p. 2. Ibid., 20 May 1788, p. 2. SC Convention Journal, 23 May 1788, 25. Ibid., 36.

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and one to limit federal power over the militia did not fare any better.705 These motions taken together show a characteristic pattern of antifederalist arguments, a pattern that had been very pronounced in Massachusetts: Too few persons, all suspect of aristocratic or monarchical leanings, would be entrusted with too great powers, especially military powers. To make things worse, all those powers were not circumscribed by a bill of rights, “ascertaining and fundamentally establishing the unalienable rights of men, without a full, free, and secure enjoyment of which there can be no liberty, and over which it is not necessary that a good government should have the control.”706 Therefore, it was only logical that the antifederalists John Bowman and William Butler moved that, in addition to the amendments offered by the committee, a bill of rights be proposed as a further alteration.707 The Federalist majority succeeded easily in voting down the motion and proceeded immediately to the general question of ratification, on which they succeeded just as easily: The recorded vote brought 149 votes in favor of the constitution and 73 against. After the vote, the members of the opposition “expressed their intention, as so large a majority appeared to be in favor of the constitution, that they would exert themselves to the utmost of their abilities to induce the people quietly to receive, and peaceably to live under the new government.”708 Concluding the convention, the members passed a motion of thanks to the delegates to the Philadelphia convention and to the president of the state convention, Thomas Pinckney, for their services. Following these motions of thanks, the convention dissolved.709 All in all, in South Carolina the Bill of Rights seems not to have been an issue of the same stature as in Massachusetts. The issue of rights to ownership of arms seems to have been even less contentious. That said, some mentions exist of other, closely related issues such as control over the militia and standing armies, albeit nowhere as densely as in Massachusetts. Rawlins Lowndes repeatedly alluded to the necessity of implementing the constitution by military force. Thus, he argued, a second convention would be a preferable means “to do away all inconveniences than the adoption of a government which perhaps might require the bayonet to enforce it.”710 The arguments the Federalists brought in favor of the necessity of a standing army, Lowndes found unconvincing. He thought it more likely that internal discontent – mainly over unpaid debts – would cause the country to split, rather than external enemies. Hence, an army would only ostensibly serve the purpose of defending the country, while being

705 706 707 708 709 710

Ibid., 36f. SC Convention Debates, in: Elliot, Debates, IV:337. SC Convention Journal, 23 May 1788, 38. CMP/CG, 24 May 1788, p. 2. SC Convention Journal, 24 May 1788, 55-57. SC House Debates, 17 January 1788, in: Elliot, Debates, IV:290.

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kept up to quell domestic unrest.711 Patrick Dollard plainly saw the constitution in the same light. His constituents were dissatisfied with the plan, and “[t]hey say they will resist against it; that they will not accept of it unless compelled by force of arms, which this new Constitution plainly threatens; and then, they say, your standing army, like Turkish janizaries enforcing despotic laws, must ram it down their throats with the points of bayonets.”712 Even the militia powers, so central in the criticism of the Constitution in Massachusetts, rarely appear in the comment of the South Carolina antifederalists. Francis Kinloch opined that the right “of ordering out & commanding the Militia with many etc. [i.e. other rights] are given up by the individual States to the Federal Government, & we are getting back fast to the system we destroyed some years ago.”713 Again, even though that criticism is not as biting a stricture as was frequently offered in Massachusetts, it hardly seems like an enthusiastic endorsement of the liberal tendencies of the Constitution. In addition to the political system and the social establishment, some other factors contributed to South Carolina’s acceptance of the Constitution. Especially the merchants in Charleston may have been willing to hold back on potential unease with the Constitution for the simple reason that it offered a way to get back at Britain: Its discriminatory trade practices had hurt the merchants considerably and the Confederation Congress had been unable to offer any substantial support or retaliation. The formation of the Marine Anti-Britannic Society in 1783 is indicative of the frustration the merchants felt at their helplessness. In the backcountry, a different set of circumstances may have had the same effect. Since colonial times, the relations between the European settlers and the native tribes in the backcountry had been rough. Especially in the territories of Georgia and North Carolina there had been altercations with the tribes and South Carolina had repeatedly attempted to moderate. However, by the time the Constitution was being discussed, the backcountry was on the brink of war. Governor Thomas Pinckney ordered military preparations, while at the time stressing “the necessity of endeavouring to keep our people from disturbing the Indians or giving them any just cause of offence.”714 As the Creek Indians had a treaty with Spain, full-scale war seemed to be a distinct possibility.715 Thus, some backcountry voters may have been hopeful that a

711 712 713

714

715

Ibid., 18 January 1788, in: Elliot, Debates, IV:309. SC Convention Debates, 20 May 1788, in: Elliot, Debates, IV:338. Francis Kinloch to Thomas Boone, 26 May 1788, Felix Gilbert (ed.), “Letters of Francis Kinloch to Thomas Boone, 1782-1788”, in: Journal of Southern History 8 (1942), 87-105, quotation at 104. Thomas Pinckney to Brigadier General Perkins, 28 September 1787, Pinckney Family Papers, DLC. Ratification Files. For the complete background see Singer, South Carolina in the Confederation 142-61. Ibid., 160.

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stronger federal government would make a better figure in negotiations as well as in war, should the latter prove unavoidable. South Carolina had been the eighth state to ratify the constitution, one more would be needed to put it into operation. The going would be very difficult, however, as the rejection in either New York or Virginia would probably scuttle the project and people in both these states had strong doubts about the plan. Virginia would make the next step, less than two weeks after South Carolina had decided the question.

6.6. Achieving Ratification The Virginia Ratifying Convention assembled in Richmond on 2 June, 1788. After dealing with the usual preliminaries, the delegates took up debate on the 3rd. Almost immediately, Antifederalist Patrick Henry began his attack on “this fatal system”, professing himself to be “extremely agitated for the situation of public affairs” and perceiving “the republic to be in extreme danger.”716 The Antifederalists, of whom Henry was the most active speaker, accounting for more than one quarter of the entire convention debates, saw peril and tyranny lurking almost everywhere. The main, recurring themes, however, were familiar: Antifederal speakers attacked the smallness of representation in the federal legislature, the power and independence of the president and the extensive powers that the Constitution bestowed to a government so unchecked. Also, Antifederalists reiterated Mason’s initial charge that there was no bill of rights to provide the people at least with a reference point for their liberties. One of the central charges Antifederalists leveled against the Constitution was that it only provided imperfect representation: It was to be feared that the representatives “must form an Aristocracy, and will not regard the interest of the people.”717 Under the Constitution, the first House of Representatives would have only 65 members, while under the Confederation the people had been represented, according to William Grayson’s estimate, by about 1500 members in the various state legislatures.718 Under these circumstances, Federalist praise was undeserved, thought George Mason: “With respect to the repre-

716

717 718

VA Convention Debates, 4 June 1788, in: DHRC IX:929. Henry repeatedly defied the rules of debate, according to which debate should have been article by article. Only on June 14 could the convention begin to debate the constitution systematically. Alan V. Briceland, “Virginia: The Cement of the Union,” in The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1988), 217. VA Convention Debates, 11 June 1788, in: DHRC IX:1155. See also VA Convention Debates, 11 June 1788, in: DHRC IX:1158. Ibid., in: DHRC IX:1171.

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sentation so much applauded, I cannot think it such a full and free one as it is represented,” he opined, but I must candidly acknowledge, that this defect results from the very nature of the Government. It would be impossible to have a full and adequate representation in the General Government; it would be too expensive and too unweildy [sic]. [...] To make representation real and actual, the number of Representatives ought to be adequate, they ought to mix with the people, think as they think, feel as they feel, ought to be perfectly amenable to them, and thoroughly acquainted with their interest and condition: Now these great ingredients are, either not at all, or in so small a degree, to be found in our Federal Representatives, that we have no real, actual, substantial representation; [...] The necessity of this inconvenience may appear a sufficient reason not to argue against it.719

These self-evident necessities, however, allowed for only one self-evident, clearly logical solution for Mason: “[I]t clearly shews, that we ought to give power with a sparing hand to a Government thus imperfectly constructed. To a Government, which, in the nature of things, cannot but be defective, no powers ought to be given, but such as are absolutely necessary.”720 The president was another thorn in the antifederalists’ flesh, even though their attacks on that office were much more disparate that those on the legislative. The powers extended to the president would put it easily within his reach to turn America into a monarchy: “If your American chief, be a man of ambition, and abilities, how easy is it for him to render himself absolute! The army is in his hands, and, if he be a man of address, it will be attached to him.”721 This was particularly true, George Mason apprehended, because the combination of powers both civil and military which the Constitution bestowed upon the executive.722 Even if a president would not use military power to perpetuate himself in office, the fact that there was no term limit or provision for rotation, as Virginia and many other colonies had, would probably lead to the same result: “Our Governor is obliged to return after a given period, to a private station. It is so in most of the States. This President will be elected time after time – He will be continued in office for life.”723 Not only would this lead to an estrangement of the officeholder from the people’s troubles in daily life, Antifederalists worried, it would also open the floodgates for foreign influence: The executive would “be subject to all the horrors and calamities of an elective Monarchy,” concluded George Mason, fearing that interested foreign powers might even bribe the president to achieve advantages.724 Under these circumstances, the 719 720 721 722 723 724

Ibid., 4 June 1788, in: DHRC IX:938. Ibid., in: DHRC IX:938f. Ibid., 5 June 1788, in: DHRC IX:964. Ibid., 18 June 1788, in: DHRC X:1379. Ibid., 17 June 1788, in: DHRC X:1365. Ibid, in: DHRC X:1365f.

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president would be in as precarious a situation as the king of Poland and yet have, in many respects, more power than English king.725 The treaty-making power was one such instance: “The President with the concurrence of twothirds of the Senate present, may make a treaty, by which any territory may be ceded or the navigation of any river surrendered; thereby granted to five States the exercise of a right acknowledged to be the highest act of sovereignty.”726 This power the antifederalists certainly would not want to give away without adequate securities. Accordingly, in light of all these formidable powers granted under the Constitution, Patrick Henry contended, “the necessity of a Bill of Rights appears to me to be greater in this Government, than ever it was in any Government before.”727 George Mason agreed. Even in Virginia, where representation of the people in the legislature was so much better, the people had found it necessary to declare certain rights “to be paramount to the power of the Legislature.”728 Another problem was, argued Henry, that the Constitution did have some features of a Bill of Rights in the ninth section of article one, which limited in some respects the powers of Congress. It was exactly this fact that made it necessary to have a larger, more comprehensive declaration: The restraints in this Congressional Bill of Rights, are so feeble and few, that it would have been infinitely better to have said nothing about it. The fair implication is, that they can do every thing they are not forbidden to do. What will be the result if Congress, in the course of their legislation, should do a thing not restrained by this ninth section? It will fall as an incidental power to Congress, not being prohibited expressly in the Constitution.729

Particularly vis-à-vis the military, a bill of rights would be valuable in ascertaining citizens’ rights. The members of the militia – generally speaking the entire male population between 16 and 60 – might be subjected to severe punishments, while being called into action to enforce oppressive laws. Standing troops might be quartered upon the population, disregarding local authorities.730 Without a bill of rights, Henry argued, all those actions would be permissible under the Constitution, leaving the people with no obvious legal remedy against the abuses of power which had played such an prominent role in the breakup with England.731

725 726 727 728 729 730 731

Ibid., 19 June 1788, in: DHRC X:1390. Ibid., 24 June 1788, in: DHRC X:1493. Ibid., 16 June 1788, in: DHRC X:1328. Ibid. Ibid., 17 June 1788, in: DHRC X:1345. Ibid., 16 June 1788, in: DHRC X:1300f. Ibid., in: DHRC X:1299f.

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The central Antifederalists knew that they had powerful arguments that resounded with the population and many other convention delegates. To achieve their aim of derailing the ratification process by making ratification contingent on prior amendments, antifederal leaders met privately “to prepare such Amendments as they deem[ed] necessary to be offered to the Convention.”732 This draft addressed the major contentious points, among them considerable limitations on the powers of the president and the federal legislature. It also stipulated other important rights and freedoms taken from the Virginia Declaration of Rights, limits on standing armies, federal militia powers and a right to keep and bear arms among them.733 Only in the final days of the convention, however, did the Antifederalists find a suitable opportunity to introduce their plan. After the Convention had been sitting for 20 days without achieving much greater certainty about ratification, pressure mounted on the delegates. In addition to the brutal heat of Richmond’s summer, they were running out of time, as the Virginia Assembly was scheduled to meet on 23 June. That would bring with it the danger of a motion to adjourn before a positive decision could be reached. Furthermore, the delegates began to show signs of attrition when on the 23rd tempers flared, members of the convention began calling each other names and exchanging insults.734 On June 24, George Wythe, whom the Federalist caucus had chosen for that purpose, rose and moved “that the Committee [of the Whole] should ratify the Constitution, and that whatsoever amendments might be deemed necessary, should be recommended to the consideration of the Congress which should first assemble under the Constitution.”735 Patrick Henry rose immediately to object, reviewing, in a lengthy speech, antifederalist objections and calling ratification “premature.”736 Henry, John Dawson and William Grayson again demanded amendments before Virginia should ratify, while James Madison again argued against proceeding in that way, perceiving it as “pregnant with dreadful dangers.”737 However, he pronounced himself willing to support any recommended amendments that were not “objectionable, or unsafe.”738 The final question the committee postponed until the morning of the 25th. After some more debate, Patrick Henry’s motion to refer suggested amendments and a bill of rights to the other states before Virginia would ratify was defeated 88 to 80, and then the convention voted 89 to 79 for ratifica732

733 734 735 736 737 738

George Mason to John Lamb, 9 June 1788, in: DHRC IX:818. See also Patrick Henry to John Lamb, 9 June 1788, in: DHRC IX:817. See also Briceland, “Virginia: The Cement of the Union,” 217. Enclosure in George Mason to John Lamb, 9 June 1788, in: DHRC IX:819-823. Briceland, “Virginia: The Cement of the Union,” 214, 17f. VA Convention Debates, 24 June 1788, in: DHRC X:1474. Ibid. Ibid., in: DHRC X:1474-1498, 1503f. Ibid., in: DHRC X:1504.

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tion.739 A committee was then formed to draft a formal statement of ratification and after the committee reported, the convention adjourned until the next morning. After a short session spent on various technical business on the 26th, the convention returned on June 27 to vote on the amendment committee’s report. That report contained a bill of rights of 20 items – including the right to arms, praise for the militia and a warning against standing armies – as well as 20 substantial amendments directed at remedying perceived dangers inherent in the proposed structure of government. At that point, the report must have passed easily, as no vote was recorded.740 Despite the fact that the lack of a bill of rights was so prominent in the debates about the constitution, a specific right to arms as mentioned only very rarely. However, in the various drafts of bills of rights, it was often mentioned in conjunction with a limit on standing armies and a guarantee to the militia. When George Mason communicated his proposed amendments to John Lamb of New York, item 17 stipulated “[t]hat the People have a right to keep and bear Arms; that a well regulated Militia, composed of the Body of the People, trained to arms, is the proper, natural, and safe Defence of a free State; that Standing Armies in Time of Peace are dangerous to Liberty.”741 Even Federalist Zachariah Johnston used the fact that the populace would be armed as an argument in favor of the Constitution, enumerating it among the various securities which, in his opinion, guaranteed the safety of the people’s rights.742 Finally, when the convention established a committee to draft recommendatory amendments to accompany ratification, the main antifederalist speakers, Patrick Henry, George Mason and William Grayson, were all appointed. The final result clearly shows their influence: Section 17 of the proposed bill of rights follows word for word the language Mason had sent to John Lamb two weeks earlier.743 Unbeknownst to the Richmond delegates, New Hampshire had beaten the Virginia convention to the mark: The convention in Concord had voted to ratify 57 to 47 on June 21, even though that news did not reach Richmond before the 27th of the month.744 Controversy, bitter fights and delaying tactics on the Federalist side had delayed the state’s vote on the issue, even though it was probably due to that very holdup that the matter was finally decided in favor of adhering to the proposed Constitution. New Hampshire’s debate of the Constitution was complicated by longstanding sectional strife within the state, which had excited local politics since the revolutionary era. Questions over representation in the state legislature and 739 740 741 742 743 744

Ibid., 25 June 1788, in: DHRC X:1538-1540. Ibid., 27 June 1788, in: DHRC X:1550-1558. Enclosure in George Mason to John Lamb, 9 June 1788, in: DHRC IX:821. VA Convention Debates, 25 June 1788, in: DHRC X:1531. Ibid., 27 June 1788, in: DHRC X:1553. Heideking, Die Verfassung vor dem Richterstuhl 659f.

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delegated power had long been divisive issues and foreshadowed difficult times for the supporters of the constitution. Much would depend on the Federalists’ political astuteness in order to see the constitution through to ratification. New Hampshire had originally begun its ratification process in December, when the legislature decided to convene a ratifying convention. It would assemble in February in Exeter, in an area that had long favored more regulatory powers for the government and that was now staunchly Federalist. Despite this initial advantage, it appeared that many delegates would arrive with binding instructions to vote against the Constitution, weakening the advantage gained by the favorable location.745 The Federalists prepared for that case by arriving early and beginning the deliberations and the all-important business of devising rules while they might still have a majority of delegates on their side. With uncertainty prevailing about the exact strength of the opposition, the Federalists decided to play it safe: The primary task would be to avoid a rejection of the Constitution, for which purpose the convention accepted a set of rules that contained safeguards for Federalist delaying tactics. These rules would retain for the Federalists the emergency option of adjourning or, as a last resort, walking out and thus stalling the convention.746 The Federalists’ caution proved well-placed: After about a week of debate and with each camp counting its supporters, nothing had been decided. Only few issues had drawn major debate, mainly, as in other states, the duration of federal office and the vast powers the Constitution delegated to the federal government. To the Federalists, the question to adjourn the convention proved not only that they would have been defeated had the vote been taken on ratification, but also showed them clearly for the first time the strength of both sides, where they would have to campaign and how they would have to use their influence in the time before the convention would reassemble in Concord in June.747 In the interim between the two conventions, Federalists were indeed very active. A newspaper campaign targeted the most crucial populations to convince them of the benefits they might expect under the Constitution, while at the same time a mud-slinging operation was mounted to discredit some central antifederalist leaders and the motives of their opposition. Furthermore, all political means were used at the local level, from resisting antifederal instructions, to electing more federally disposed members, to what might have been election

745

746 747

Jere Daniell, “Ideology and Hardball: Ratification of the Constitution in New Hampshire,” in The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1988), 188-90. Ibid., 191-93. Ibid., 193f.

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fraud in order to unseat an opponent of the Constitution and replace him with a federalist delegate.748 After such machinations, the Federalists were a little more confident that they might be able to conclude the ratification process successfully. That confidence was bolstered by the fact that, after all heads had been counted, the Federalist camp was much more complete than the opposition. Nonetheless, they were prepared to offer the now-standard list of recommendatory amendments. When the vote was taken, some delegates, who were caught between their instructions and their personal feelings, absconded, thus making possible the clear 57 to 47 vote to ratify.749 The amendments the convention proposed generally followed those of Massachusetts, but added, among other provisions, language to limit standing armies and a rule that “Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.”750 With ten states acceding to the constitution and Virginia among them, pressure was mounting on New York. Despite strong antifederal leanings, many opposition delegates did not think a flat rejection of the constitution advisable.751 While they had used delaying tactics at the beginning of the convention, Federalists were, after word of Virginia’s ratification had arrived in Poughkeepsie on 2 July, suddenly very willing to go along with amendment suggestions. After a number of attempts to make ratification conditional on the acceptance of certain structural changes and to include a withdrawal clause in the ratification, some Antifederalists agreed to rely upon the first Congress under the constitution to address the state’s wishes for changes. The split thus caused in the antifederal ranks allowed the passage of the constitution, albeit by a narrow margin of 30 to 27 on July 26.752 North Carolina and Rhode Island still held out in their recalcitrance. At Hillsborough, the convention delegates compiled a lengthy catalog of amendments which they considered a condition to be met by the other states before North Carolina would accede to the constitution. While they also sent some conciliatory signs, it took over a year of hard-nosed politicking, threats and name-calling to achieve another convention. In the end, the Fayetteville convention ratified the Constitution with as comfortable a majority as it had been rejected with in Hillsborough. The fact that Madison had in the meantime in748 749 750

751 752

Ibid., 194f. Ibid., 196-98. Edward Dumbauld, The Bill of Rights and What It Means Today, [1st] ed. (Norman, OK: University of Oklahoma Press, 1957) 182; Heideking, Die Verfassung vor dem Richterstuhl 657. Ibid., 675. Ibid., 680f; John P. Kaminski, “Adjusting to Circumstances: New York's Relationship with the Federal Government, 1776-1788,” in The Constitution and the States: The Role of the Original Thirteen in the Framing and Adoption of the Federal Constitution, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1988), 244-46.

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troduced his amendments in Congress as well as the prospect of an Indian war on the North Carolina frontier helped the Federalists in bringing about this result.753 Rhode Island proved to be even more persistently stubborn. After an early referendum on the Constitution, in which the draft had been overwhelmingly rejected, Rhode Island also needed two conventions in order to ratify the new plan of government. In South Kingstown, delegates only sent a list of desirable amendments to the towns for consideration and then adjourned. After an antifederal general election victory largely fueled by opposition to the Constitution, the convention met again in Newport and adopted the document with the truly narrow margin of 34 to 32. Even that result had been brought about by considerable political pressure: The federal Congress had begun to deliberate a punitive law, targeting Rhode Island exports to the Union towards the end of April. Under the impression of such action, moderate Antifederalists were able to effect a turn they had been contemplating for a while, but had been unable to fulfill. They allowed ratification and annexed their report with yet another set of amendments and the demand for a bill of rights.754 The last three original states to ratify – Vermont would accede to the Union by ratifying the Constitution, too – all submitted very similar lists of amendment demands, all of which were rather lengthy. Just as Virginia had done, they all separated their wishes for a Bill of Rights from another set of structural amendments. The latter, they exhorted their future member of Congress to promote and obtain. The Declarations of Rights in all three states featured the now-customary trinity of warnings against standing armies in peacetime, guarantees for the militia as well as for a certain right to keep and bear arms. In order to achieve all this, the states would have to rely on the first Congress that would assemble under the constitution. In some states, antifederal majorities in the state legislatures made sure that they elected like-minded delegates into their first congressional delegations, who would pursue the demanded amendments in Congress. Despite this fact, the first federal Congress had a clear Federalist majority. But even the Federalists could not easily step back from the promises they had made during the ratification campaign.

6.7. Constitutional Amendments and the First Federal Elections New Hampshire’s ratification on June 21, 1788 had been the ninth and when the confederation Congress received the official notification of that event, it immediately began deliberations on calling elections for the new government. That, however, proved much more difficult than expected, as it seemed impos753 754

Heideking, Die Verfassung vor dem Richterstuhl 688-94. Ibid., 695-703.

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sible to reach a consensus on where the new government should temporarily be installed: After New York’s ratification – until then the name of the place had been left blank in the draft ordinance – Philadelphia was proposed and rejected, as was Lancaster in Pennsylvania. Then Baltimore was the favorite for a brief moment, only to be reconsidered and rejected, too. In their turn, New York City, Wilmington in Delaware, again New York and Lancaster and finally Annapolis, the capital of Maryland, were all rejected.755 Finally, Congress fixed the temporary seat of the government under the Constitution in a roundabout way: It designated the first Wednesday of January 1788, the 7th, for the appointment of presidential electors, the first Wednesday of February, the 4th, for the electors to meet and vote and the first Wednesday of March, the 4th, to “be the time, and the present Seat of Congress [i.e. New York] the place for commencing Proceedings under the said Constitution.”756 Not only the Confederation Congress had tensions running high. In Massachusetts, the debate over the constitution carried over into the election campaign without respite and amendments to the constitution were very likely the single most important issue. Antifederalists there often enough were distrustful of the Federalists, asking “[w]hether the amendments were proposed with an intention of having them adopted, or whether they were artfully introduced to deceive the members of the Convention?”757 The question carried great explosive potential and was, accordingly, central in the political debate. When, for example, Elbridge Gerry was being berated by the Federalists as standing in favor of amendments, ‘Adolphus’ came to his defense: Finally, the convention adopted the form of government, by a small majority, with the most solemn injunctions upon the Representatives of the commonwealth in Congress, to exert their influence to obtain the proposed alterations, and amendments. Were these men sincere, or were they jesting with the people? If they were honest, and sincere, why would there be an objection to Mr. Gerry because he is in favor of these amendments and alterations? These men, or some of them, at least, spoke their sentiments, but there are others who having obtained a vote for a ratification, now laugh at amendments, and revile everyone who is in favor of them; but you my fellow citizens know your friends. Your eyes are now opened by the perfidy and duplicity of men, who are too lazy to dig, and are ashamed to beg. But Mr. Gerry loves the people too well to participate in wealth arising from their misery, and so you are not to vote for him. There is neither policy nor propriety in this violent opposition to amendments. Three-quarters of the people of this commonwealth expect them to be attempted.758

755 756 757 758

DHFFE I:13. Election Ordinance, 13 September 1788, in: DHFFE I:133. Honestus, Independent Chronicle, 30 October 1788, in: DHFFE I:473. Adolphus, Independent Chronicle, 1 January 1789, in: DHFFE I:638. See also Elbridge Gerry to Samuel Dexter, 12 January 1789, in: DHFFE I:644; Elbridge Gerry to the

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Indeed, some of the Federalists had attempted to distance themselves from the promises made in the ratifying convention, arguing that only time would show any errors in the Constitution: “If the Constitution is a bad one, let it be proved so by experience. If it is a good one, let us not choose men to deface and injure it, by pretended amendments,” argued ‘Steady’ in the Massachusetts Centinel.759 Only “Antifederal anarchiads” could possibly fail to see the wisdom in this.760 Among themselves, Federalists were even more explicit. Writing to Benjamin Lincoln, Theodore Sedgwick expressed his hope “that every prudent precaution will be taken to [secure?] a good federal representation. The amendment mongers, I trust in Heaven, will be universally excluded. The danger is not that the first operations of the new government will be too rigorous, but too cautious and timid.”761 In achieving their goals, they pinned their hopes on the General Court (thank God they choose the Senators) and the freemen of the county of Suffolk, in particular, [who] will undoubtedly fix their eyes upon men of real federalism, consistent, independent characters, who have judgment to discern, and spirit to pursue, the best interests of their country. You will not find such men pledging themselves to alter the Constitution.762

The General Court did indeed elect two staunch Federalists, Tristram Dalton and Caleb Strong, to the Senate.763 Yet, as many voters supported amendments, they shared the views of Samuel Osgood, who “consider[ed] the first Congress as a second convention. It is evident they must do some acts relative to amendments which will bear hard upon the Convention that framed the Constitution.”764 Under such mounting pressure, even outspoken opponents of amendments recognized that they would have to pay at least lip service to support amendments if they wanted to maintain their chances of being elected to the first Congress. Even Theodore Sedgwick was now forced to pledge himself to support amendments: “My friends and acquaintance [sic]

759

760 761 762 763 764

Electors of Middlesex, 22 January 1789, in: DHFFE I:647; An Observer, Independent Chronicle, 22 January 1789, in: DHFFE I:669. Steady, Massachusetts Centinel, 3 September 1788, in: DHFFE I:458. See also Hortensius, Massachusetts Centinel, 27 August 1788, in: DHFFE I:450; An American, Massachusetts Centinel, 10 January 1789, p. 136; Herald of Freedom, 15 September 1788, p. 3; Herald of Freedom, 18 September 1788, p. 3; Herald of Freedom, 29 September 1788, p. 19. Constitution, Massachusetts Centinel, 1 October 1788, in: DHFFE I:464. Theodore Sedgwick to Benjamin Lincoln, 23 September 1788, in: DHFFE I:462. See also Sedgwick to Alexander Hamilton, 2 November 1788, in: DHFFE I:480. Massachusetts Centinel, 6 September 1788, in: DHFFE I:458. On the federalist leanings of Dalton and Strong, see Benjamin Lincoln to George Washington, 20 December 1788, in: DHFFE I:569. Samuel Osgood to Elbridge Gerry, 19 February 1789, in: DHFFE I:657.

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know, and all with whom I have had the pleasure of conversing on the subject know, that I have been, and now am, a zealous advocate for many amendments.” Only such amendments as were “partial or local” would not find his support.765 Not surprisingly, elections for the House of Representatives proved very difficult in Massachusetts. Federalists Fisher Ames, George Partridge, George Thatcher and George Leonard were elected for Suffolk, Plymouth-Barnstable, York-Cumberland-Lincoln, and Bristol-Dukes-Nantucket districts, respectively, while in the other four districts no candidate had a majority. In a second election on 29 January, another Federalist, Benjamin Goodhue, was elected in Essex and Antifederalist Elbridge Gerry in Middlesex with Worcester and HampshireBerkshire districts remaining undecided. In a third attempt, Jonathan Grout, who had opposed the Constitution in the ratifying convention, was elected in Worcester yet neither this nor the fourth ballot brought final results in Hampshire-Berkshire. Only after a fifth ballot, held on 11 May, was Theodore Sedgwick finally elected with the narrowest of margins: He had 2056 votes when the necessary majority was 2048.766 Thus, Massachusetts would be represented in the first Congress in New York by two Federalist senators and six Federalist and two Antifederalist representatives. The views of the voters in South Carolina and what preoccupied them is much harder to establish, as sources are much skimpier there than they are in Massachusetts. That is particularly true for the backcountry: While there is some documentary evidence available for the Charleston elections, next to nothing is known on the other districts.767 At least in Charleston, amendments seem to have been a minor issue, especially as the election of a Federal delegate was all but a foregone conclusion, as all candidates had backed the constitution. The ire in that specific campaign stemmed from different roots, mainly being quarrels over political vanities rather than issues. For these two reasons, it is not surprising that amendments did not play a role in the metropolitan district. In the upcountry, the situation must have been somewhat different, even though the evidence is only circumstantial. The district of Ninety-Six elected Thomas Tudor Tucker, who had voted against the Constitution in the ratifying convention, as had Aedanus Burke, who would be the member for Orangeburgh and Beaufort. Camden sent Thomas Sumpter. “These 3 are clearly Antifederal,” wrote Judge John Grimké, and while he counted one Federalist elected, he was unsure about Daniel Huger, who had been chosen in 765 766

767

Theodore Sedgwick to Samuel Henshaw, reprinted in the Hampshire Gazette, 6 May 1789, in: DHFFE I:729. See also DHFFE I:712. For the results see DHFFE I:608-623, 634f, 654f, 665-667, 673-675, 682-683, 691-694, 705-707, 732-735. For the candidates’ political allegiance see: Christopher Gore to Rufus King, 21 December 1788, in: DHFFE I:571; DHFFE I:575; Henry Jackson to Henry Knox, 21 December 1788, in: DHFFE I:585; DHFFE I:586; DHFFE I:751. DHFFE I:149f, 174.

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Georgetown and Cheraws district. “What a black list,” sighed Grimké.768 With the piedmont opposed to the Constitution in the ratifying convention and staunchly antifederal representatives elected, it seems reasonable to conjecture that a popular demand for amendments to the Constitution may have been an issue in the elections there. The election of senators was more to the Federalists’ liking. As this was a matter for the Assembly, which they controlled, Federalists were rather relaxed about the outcome. John Grimké wanted “to mend it [i.e. the election of Representatives] by our election of Senators which will come on next Wednesday and which I hope will be a Federal one.”769 Only a few days later, the Assembly indeed elected Pierce Butler and Ralph Izard – “both strong Federalists” – as South Carolina’s first senators, again without leaving evidence of which issues – if any – might have been debated.770 While the elections in Massachusetts and South Carolina clearly show that there was a certain amount of unhappiness with the Constitution and its proponents, and even a more or less pronounced demand for amendments in those two states, it was the election in Virginia which proved to be perhaps the single most important one on the way to achieving amendments and ultimately the Bill of Rights. It was in the election campaign there that James Madison, who had been so central both in drafting the Constitution in Philadelphia as well as in procuring adoption in Virginia, had to declare publicly that he would support amendments in order to secure his election.771 Virginia was among the early states to enter into the first federal election season. Only three states had acted before Virginia’s assembly, on 8 November, proceeded to elect the state’s delegation in the Senate. Before the election, Patrick Henry, Richard Henry Lee, William Grayson and James Madison had been discussed as suitable candidates.772 Madison himself, however, harbored severe doubts about whether he would be elected to the Senate, at least not without “the appearance of a spirit of electioneering,” which Madison was uneasy with.773 Edward Carrington reeinforced Madison’s concern, finding the Virginia Assembly inclined to electing two Antifederalists.774 When the election was drawing near at the end of October, Patrick Henry seems to have been very 768 769 770 771 772

773 774

John Faucheraud Grimké to Henry William Harrington, 16 January 1789, in: DHFFE I:205. Ibid. Charles Pinckney to Rufus King, 26 January 1789, in: DHFFE I:209. Briceland, “Virginia: The Cement of the Union”; Heideking, Die Verfassung vor dem Richterstuhl 821. Edward Carrington to James Madison, 19 October 1788, in: DHFFE II:260; Joseph Jones to James Madison, 20 October 1788, in: DHFFE II:261; Edmund Randolph to James Madison, 23 October 1788, in: DHFFE II:264. James Madison to Edmund Randolph, 17 October 1788, in: DHFFE II:260. Edward Carrington to James Madison, 22 October 1788, in: DHFFE II:263.

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explicit about his preferences: “I am told Mr. Henry has publickly said that no person who wishes the constitution to be amended should vote for Mr. Madison to be in the Senate,” Charles Lee informed George Washington, “and there is much reason to fear he will not be elected.”775 When all the votes had been tallied, Madison had indeed not been chosen to represent Virginia in the Senate, and indeed the legislature had elected two antifederalists, William Grayson and Richard Henry Lee, to those offices.776 “It is most ardently to be hoped, notwithstanding; that the Councils of the United States may not be deprived of the abilities, knowledge, and zeal of this celebrated Federalist,” wrote the United States Chronicle.777 Madison himself had argued that his services would be more valuable in the House of Representatives, anyway, so it was a natural step that, having been defeated for the Senate, he should pursue a seat there.778 In forming the districts for the election of Federal representatives, however, many Federalists sensed foul play. George Turberville complained to Madison that the districts had been rigged: the [sic] Committee of the whole have been this day upon ye bill for organizing the Government – forming the districts &c – the prevalence of local prejudices are not uncommon in our house – but for a majority to bend its utmost efforts agt. an individual is rather uncommon – The object of the majority of to day [sic] has been to prevent yr. Election in the house of Representatives as demonstratively as if they had affirmed it – first by forming a district (as they supposed) of Counties most tainted with antifederalism in which Orange is included – & then by confining the choice of the people to the residents in the particular districts.779

Despite such machinations – the expression “gerrymandering” would later be coined in reaction to similar undertakings by Elbridge Gerry in Massachusetts – the outcome of the election was not at all certain. “Your district will certainly elect you,” Henry Lee assured Madison, “I have heard no person named in opposition but the beau.”780 The opposing party was just 775 776

777 778 779

780

Charles Lee to George Washington, 29 October 1788, in: DHFFE II:269. House and Senate Proceedings, 8 November 1788, in: DHFFE II:281f. See also Edmund Randolph to James Madison, 10 November 1788, in: DHFFE II:368; George Lee Turberville to James Madison, 10 November 1788, in: DHFFE II:369; James Madison to Tench Coxe, 16 February 1789, in: Madison Papers, XI:443f. United States Chronicle, 25 December 1788, p. 2. James Madison to Edmund Randolph, 17 October 1788, in: DHFFE II:260; James Madison to Edmund Randolph, 2 November 1788, in: DHFFE II:270. George Lee Turberville to James Madison, 13 November 1788, in: DHFFE II:372. See also Edmund Pendleton to Nathaniel Pendleton, 25 November 1788, in: DHFFE II:380; James Madison to Thomas Jefferson, 8 December 1788, in: DHFFE II:324. Henry Lee to James Madison, 8 December 1788, in: DHFFE II:381. “The beau” probably refers to James Monroe. See ibid., note 2.

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about as confident in their predictions of Madison’s defeat: “Mr. Jas. Monroe of Fredericksburg (late Member of Congress) opposes Mr. Maddison in the Spotsylvania & Orange District, & it’s thought will carry his Election.”781 For Madison’s supporters, it soon became clear that his stance on amendments would be a major obstacle. “Every art has been used to prejudice the minds of the people against you,” opined George Nicholas: They are told, that you tricked this country into the business by the manner in which you first proposed a general convention to our legislature; that you had a chief hand in sending forth the constitution from the Convention without the amendments generally wished; and that you are now opposed to all amendments.782

In order to save his chances of being elected, his supporters urged Madison to contradict the antifederal position and declare himself publicly to be in favor of amendments, preferably combined with personal appearances in the district.783 While he declined any undertaking that could be construed as electioneering, Madison finally did declare his position on amending to the Constitution.784 In a letter to George Eve, he argued that his primary focus had been the necessity of obtaining the ratification and that amendments at that time would have been detrimental to that goal. With ratification achieved, however, amendments, if pursued with a proper moderation and in a proper mode, will be not only safe, but may serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favor of liberty. Under this change of circumstances, it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it, ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c.785

Then, Madison went on to explain why he opposed the second convention, which so many of the Antifederalists favored: I have intimated that the amendments ought to be proposed by the first Congress. I prefer this mode to that of a General Convention, 1st. because it is the most expeditious mode. A Convention must be delayed, until 2/3 of the State Legislatures shall have 781 782 783

784 785

George Mason to John Mason, 18 December 1788, in: DHFFE II:382. George Nicholas to James Madison, 2 January 1788, in: DHFFE II:331. See also James Madison to George Washington, 14 January 1789, in: Madison Papers XI:417f. Hardin Burnley to James Madison, 16 December 1788, in: DHFFE II:328; George Nicholas to James Madison, 2 January 1789, in: DHFFE II:331. See also Massachusetts Centinel, 28 February 1789, p. 193. James Madison to Thomas Jefferson, 8 December 1788, in: DHFFE II:324f. James Madison to George Eve, 2 January 1789, in: DHFFE II:330f.

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applied for one; and afterwards the amendments must be submitted to the States; whereas if the business be undertaken by Congress the amendments may be prepared and submitted in March next. – 2ndly. because it is the most certain mode. There are not a few States who will absolutely reject the proposal of a Convention, and yet not be averse to amendments in the other mode. – lastly, it is the safest mode. The Congress, who will be appointed to execute as well as amend the Government, will probably be careful not to destroy or endanger it. A convention, on the other hand, meeting in the present ferment of parties, and containing perhaps insidious characters from different parts of America, would at least spread a general alarm, and, be but too likely to turn every thing into confusion and uncertainty.786

This reasoning Madison undertook to disseminate in the district in order to combat the negative impression the electorate might have of him. The letters to his friends and statements in newspapers had, in the end, the desired effect:787 Madison won the election with a considerable margin.788 The importance of Madison’s election, and specifically the circumstances under which it was achieved can hardly be overestimated, as it added considerable momentum to the demand for amendments: Now, it was not only some state ratifying conventions which had committed their representatives to the task of obtaining amendments, but one of the most prominent and most visible politicians of the day, who was also one of the principle authors of the document and a leading member of the majority in the first Congress had publicly declared that he was in favor of amendments. It was Madison’s election which brought about a credible and ultimately successful attempt at amending the Constitution. Despite the high profile the demand for amendments had in the interim between the ratifications in the various states and the opening of the first Congress, and most specifically during the election campaigns, details were discussed only very rarely. This was mainly due to the fact that, first of all, the issue as such was most important in the political debate: The states had made clear in their ratification documents which amendments they considered necessary, often enough with some mention of the right to arms. The debate, however, focused on how these amendments in general could best be obtained and not on the importance of specific items from those lists. Accordingly, the most important question during the elections was whether a candidate supported amendments in general and those specifically enumerated by the ratifying con786 787

788

James Madison to George Eve, 2 January 1789, in: DHFFE II:331. See also Independent Gazetteer, 23 March 1789, p. 2. See for example: A Republican Federalist and James Madison, Virginia Independent Chronicle, 28 January 1789, in: DHFFE II:338ff; Virginia Herald (Fredricksburg), 29 January 1789, in: DHFFE II:340f; James Madison to Thomas Mann Randolph, 13 January 1789, in: Madison Papers, XI:415-417; United States Chronicle, 5 March 1789, p. 2. Virginia Herald, 12 February 1789, in: DHFFE II:346.

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ventions. Whether he thought any further amendments necessary may have been of secondary influence. This situation, however, was about to change, when Congress entered upon the debate of specific changes and additions it would recommend to the states for adoption.

6.8. Congress and the Bill of Rights When the Congress assembled in New York, amendments slipped into the background for a time, while other issues that many considered more pressing took center stage. The first problem, however, was to attain a quorum: It is not a little wonderful that with all the zeal in favor of the New Government the members cannot be collected to administer it. The business was to have commenced 4th March & 24 days have elapsed without making a quorum, nor do I think it w{ill} be effected before Tuesday or Wednessda{y}[sic] {---} the next week.789

After the House had finally attained a quorum by 1 April, it first dealt with what many considered the most important business: The organization of the revenue, the judiciary and the cabinet departments, argued many members, should take precedence.790 “I hope we shall not be wasting time with Idle discussions about amendments of the Constitution; but that we shall go to work immediately about the Finances, & endeavour to extricate ourselves from our present embarrassed, & disgraceful situation,” wrote Ralph Izard to Thomas Jefferson.791 Many members probably shared Izard’s sentiments, as Federalists, “who sufficiently predominate in both branches,” often were still lukewarm about amendments.792 Nonetheless, a feeling that some amendments would be helpful and sensible was now widespread even among Federalists, as Nathan Dane suggested: “will [sic] not declaring the rights expressly and fortifying the liberties of the Country More [sic] explicitly induce confidence and there by in fact add Strength to the government, produce punctuality in the execution of the laws, and make a system good in the outlines of it, more complite [sic, i.e. 789 790 791 792

Samuel A. Otis to Nathan Dane, 28 March 1789, Dane Papers, DLC. Ratification Files. New York Daily Advertiser, 9 June 1789, in: DHFFC XI:803f. See also James Madison to Thomas Jefferson, 30 June 1789, in: Madison Papers XII:272. Ralph Izard to Thomas Jefferson, 3 April 1789, in: Jefferson Papers XV:22. James Madison to Edmund Randolph, 12 April 1789, in: Madison Papers XII:76. On the composition of the Congress see also James Madison to Edmund Pendleton, 8 April 1789, in: Madison Papers XII:51; Christopher Gore to Rufus King, 7 June 1789, in: Charles R. King (ed.), The Life and Correspondence of Rufus King: Comprising his Letters, Private and Official, his Public Documents, and his Speeches. 6 vols. New York: G.P. Putnam’s Sons, 1894-1900, I:361; John Bacon to Elbridge Gerry, 17 August 1789, Gerry Papers, MHi. Ratification Files.

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complete]”?793 It would also – in the opinion of George Washington – “quiet the fears of some respectable characters and well meaning Men,” and at the same time facilitate the accession of North Carolina and Rhode Island to the Constitution.794 With all these arguments as well as his campaign promises in mind, Madison announced on May 4 that he would introduce a resolution for amendments into the House of Representatives.795 After some delays in favor of other business, Madison presented his amendments on 8 June. “They are the fruit of much labor and research,” Federalist Fisher Ames admitted, even though he believed Madison had gone too far: He has hunted up all the grievances and complaints of newspapers, all the articles of conventions, and the small talk of their debates. It contains a bill of rights, the right of enjoying property, of changing the government at pleasure, freedom of the press, of conscience, of juries, exemption from general warrants, gradual increase of representatives, till the whole number, at a rate of one to every thirty thousand, shall amount to ____, and allowing two to every state, at least. This is the substance. There is too much of it. Oh! I had forgot, the right of the people to bear arms. Risum teneatis amici?796

Despite Ames’ misgivings, the House voted to debate the amendments in the committee of the whole at a later date but had to be prompted again by

793 794

795

796

Nathan Dane to George Thacher, 31 May 1789, Thacher Papers, Chamberlain Collection, MB. Ratification Files. George Washington to James Madison, ca. 31 May 1789, in: Madison Papers XII:191. See also Edward Stevens to James Madison, 25 June 1789, in: Madison Papers XII:261; Edmund Randolph to James Madison, 30 June 1789, in: Madison Papers XII:273; Fisher Ames to George Richards Minot, 23 July 1789, in: Works of Fisher Ames, I:694; Fisher Ames to George Richards Minot, 12 August 1789, in: Ames, Works of Fisher Ames, I:66f; Peter Muehlenberg to Benjamin Rush, 10 June 1789, John F. Reed Collection, Valley Forge National Historical Park, King of Prussia, PA (Partially printed in: John F. Reed, “Peter Muehlenberg and the Bill of Rights,” Manuscripts 25.1 (1973), 47-49, 48; William R. Davie to James Madison, 10 June 1789, in: Madison Papers XII:210f; John Bacon to Elbridge Gerry, 17 August 1789, Gerry Papers, MHi. Ratification Files. Lloyd’s Notes, 4 May 1789, in: DHFFC X:391. See also Richard Henry Lee to Samuel Adams, 10 May 1789, in: Paul P. Hoffman (ed.), Lee Family Papers, 1742-1795. 8 reels microfilm. Charlottesville, VA: University of Virginia Library, 1966. Ratification Files. For the Bill of Rights’ way through Congress see also Charlene Bangs Bickford and Kenneth R. Bowling, Birth of the Nation: The First Federal Congress, 1789-1791 (Washington, DC/New York: First Federal Congress Project George Washington University/Second Circuit Committee on the Bicentennial of the United States Constitution, 1989) especially 51-54. Fisher Ames to Thomas Dwight, 11 June 1789, in: Ames, Works of Fisher Ames, I:53. The Latin translates as: “Could you hold back your laughter, my friends?” See also Fisher Ames to George Richards Minot, 12 June 1789, in: Ames, Works of Fisher Ames, I:53f.

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Madison before the matter was taken up; the House then changed its mind on 21 July and submitted Madison’s resolution to a select committee.797 The select committee worked swiftly and reported back to the House after only a week.798 Debates on the committee report were again delayed, however, and the House took up the matter only another two weeks later, on 13 August.799 The first bone of contention the committee of the whole encountered was the question of where to place the amendments in the Constitution: Should they be incorporated into the original text or should they be annexed at the end? Following the argument that it was improper to change the text which the members of the Philadelphia Convention had signed, Roger Sherman moved to attach the alterations in a separate text at the end of the document.800 Debate progressed very slowly and it took until 17 August for the House to reach item six of the select committee report, dealing with the militia, a right to keep and bear arms and exemption for those religiously scrupulous of bearing arms.801 The debate on this point largely revolved around the militia and the powers Congress would have over it. Elbridge Gerry opened the discussion with the argument that Congress might use a rule on religious exemptions to undermine the militia: “They can declare who are those religiously scrupulous and prevent them from bearing arms.” As a solution, Gerry suggested that only members of specific sects be exempted from duty.802 This change, however, did not find a majority, nor did Gerry’s proposal to insert “trained to arms” after “well-regulated militia” in order to stress the government’s obligation to maintain and exercise the militia.803 An attempt by Aedanus Burke to require a two-thirds majority to maintain a standing army in peacetime suffered the same fate as Gerry’s amendments. Having failed to adopt alterations, the House voted to accept the provision in the same form it had been read to the committee of the whole.804 The House then moved on to consider the proposed limits on quartering soldiers, after only the briefest discussion of the right to bear arms.

797

798 799 800

801 802 803 804

Congressional Register, 21 July 1789, in: DHFFC XI:1158. See also James Madison to Wilson Cary Nicholas, 18 July 1789, in: Madison Papers XII:295; Fisher Ames to George Richards Minot, 23 July 1789, in: Ames, Works of Fisher Ames, I:694. House Journal, 28 July 1789, in: DHFFC III:124. The committee report is printed in DHFFC IV:27-31. House Journal, 13 August 1789, in: DHFFC III:148. Congressional Register, 13 August 1789, in: DHFFC XI:1221ff. The motion finally carried on 19 August. Congressional Register 19 August 1789, in: DHFFE XI:1308. See also James Madison to Alexander White, 24 August 1789, in: Madison Papers XII:352. Congressional Register, 17 August 1789, in: DHFFC XI:1285. Ibid., 1285f. Ibid., 1287f. Ibid., 1285.

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The process of debating the amendments in the House took considerable time and progress was generally glacial. Even James Madison, who after all had introduced the amendment plan, found it “exceedingly wearisome” and “extremely difficult and fatiguing,” but he was convinced that too much had been done by the time for the “nauseous project” to be dismissed.805 Meanwhile, many others were unhappy, too. Some Federalists still argued that amendments should have been discussed at a later time. “Before we could be said to have a government to attempt to amend the constitution argues a frivolity of character very inconsistant [sic] with national dignity,” complained for example Massachusetts Representative Theodore Sedgwick in a letter to his wife.806 Others, mostly staunch Antifederalists, had different objections, believing that Madison’s amendments were absolutely insufficient: “Perhaps some Milk & Water Propositions may be made by Congress to the State Legislatures by way of th[r]owing out a Tub to the Whale; but of important & substantial Amendments, I have not the least Hope,” wrote George Mason, an early campaigner against the Constitution as it had been proposed by the Philadelphia Convention.807 It was in this political climate that the House of Representatives passed a resolution on the amendments, sending them on their way to the Senate on 24 August 1789. And it was in the same climate that the Senate, which was even more staunchly Federalist in its membership than the House, took up the issue of amendments for the first time on the 25th.808 What transpired in the Senate is much harder to grasp than the actions and debates of the House of Representatives. The most significant obstacle is the fact that the Senate conducted its business behind closed doors until 1794.809 Hence, transcriptions or summaries of debates are much scarcer there than for the House. However, some significant bodies of notes exist, most particularly the Diary of Pennsylvania Senator William Maclay. Unfortunately, Maclay suffered from rheumatism and did not attend most of the sessions during which

805

806 807

808 809

James Madison to Edmund Randolph, 21 August 1789, in: Madison Papers XII:348; James Madison to Edmund Pendleton, 21August 1789, in: Madison Papers XII:348; James Madison to Richard Peters, 19 August 1789, in: Madison Papers XII:346f. Theodore Sedgwick to Pamela Sedgwick, Sedgwick Papers, Box 3, MHi. Ratification Files. George Mason to John Mason, 31 July 1789, in: Robert A. Rutland (ed.), The Papers of George Mason, 1725-1792. 3 vols. Chapel Hill, NC: University of North Carolina Press, 1970, III:1164. Even Thomas Jefferson would have liked more alterations. See Thomas Jefferson to James Madison, 28 August 1789, in: Madison Papers XII:363f. See also Pierce Butler to James Iredell, 11 August 1789, in: Griffith J. McRee (ed.), Life and Correspondence of James Iredell: One of the Associate Justices of the Supreme Court of the United States. 2 vols. New York: Appleton, 1857-1873, II:265. Senate Legislative Journal, 25 August 1789, in: DHFFC I:135ff. See the introduction in DHFFC IX:xi.

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the amendments passed by the House were under consideration.810 Thus, the evidence available for the Senate debates is very often circumstantial and more often than not it is impossible to compare it with other sources as is the case for the House of Representatives. When the Senate took up the House resolution concerning amendments, some Federalists attempted to postpone consideration. “[T]hey [i.e. the amendments] were treated contemptuously by Z, Langdon and Mr. Morris. Z moved they should be postponed to next session[,] Langdon seconded & Mr. Morris got up and spoke angrily but not well,” reported William Maclay and Richard Henry Lee was surprised to find in the Senate that it was proposed we should postpone the consideration of Amendments until Experience had shown the necessity of any – As if experience were now necessary to prove the propriety of those great principles of Civil liberty which the wisdom of Ages has found to be necessary barriers against the encroachments of power in the hands of frail Man!811

Izard’s motion lost and the matter was placed on the Senate’s agenda for debate on 2 September. That day, the Senate dealt with the first of the seventeen amendments and on 3 September the second and third articles were debated. The third in particular seems to have been contentious, as numerous motions were made to alter the proposed wording.812 The next day, the Senators advanced to the eleventh article, shortening the militia article somewhat and eliminating the provisions for exemptions on the basis of conscience. September 7th saw many motions for further amendments, the adoption of the remainder of the House’s articles and a move to change the preamble. On the 8th, after another flurry of amendment proposals, the Senate proceeded to eliminate some provisions and renumber the rest, concluding the day by passing their amendments, now reduced to twelve, and sending them back to the House. The House did not agree to all of the Senate’s changes and a conference committee had to be arranged. On 24 September, the House concurred in Madison’s committee report, as did the Senate on the 25th. Both houses also passed a resolution calling on President Washington to transmit the proposed amendments to the eleven states of the Union as well as North Carolina and 810

811

812

Interestingly, the Senate Journal did not note Maclay’s absence at all. Even on days where Maclay specifically noted that he did not attend, the Journal simply noted that members had been “Present as yesterday.” See for example Maclay Diary, 2/3 September 1789, in: DHFFC IX:143-147 and Senate Legislative Journal, 2/3 September 1789, in: DHFFC I:148-152. “Z” was Ralph Izard of South Carolina. Maclay Diary, 25 August 1789, in: DHFFC IX:133; Richard Henry Lee to Charles Lee, 28 August 1789, in: James C. Ballagh (ed.), The Letters of Richard Henry Lee. 2 vols. New York: Macmillan, 1911-1914, II:499. Senate Legislative Journal, 3 September 1789, in: DHFFC I:150-152.

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Rhode Island, neither of which had ratified the Constitution at that time. What would become the Bill of Rights was finally on its way to the states for their assent, but not to universal applause. Richard Henry Lee, for one, was not overly impressed: “Some valuable rights are indeed declared,” among them what would become the Second Amendment, “but the power to violate them to all intents and purposes remains unchanged,” he believed nonetheless.813

6.9. Ratifying the Bill of Rights Ratification of the amendments proposed by Congress went much more smoothly than the ratification of the Constitution itself. Federalists had correctly predicted that passage of the amendments would “quiet the minds” of many who had opposed the Constitution from honest anxiety of its impact on their civil liberties. At the same time, Federalists who had – in the wake of their successful advocacy of the Constitution – taken over many state legislatures were by then more than willing to wave through the Bill of Rights proposed by Congress. With debate much thinner, so is the documentary record. Accordingly, it is much harder to trace the issues and argumentation as well as with the constitutional ratification debate. Especially the record of public debate – newspaper commentary, pamphlets etc. – are much scarcer while the legislative evidence is generally still available. After George Washington had transmitted the proposed amendments to the states in early October of 1789, the ratification process seemed to move along very quickly. “The amendments to the Constitution proposed by Congress to the several States, appear to receive that cordial approbation, which does honour to the candour and patriotism of the respective State Legislatures, to whom they have been submitted,” the Massachusetts Centinel could report as early as 2 January 1790.814 Indeed, in little over seven months, nine states had ratified with few problems, such strongly antifederalist states as New York, North Carolina and Rhode Island among them. Rhode Island as well as North and South Carolina, attached to their ratification documents the demand for further amendments, though without stirring much support among the other states. In the latter state, Governor Charles Pinckney had recommended the amendments to the “immediate attention” of the House of Representatives when he informed them of business transacted during the legislature’s recess.815 813 814 815

Richard Henry Lee to Patrick Henry, 14 September 1789, in: Ballagh, Letters of Richard Henry Lee, II:503. Massachusetts Centinel, 2 January 1790, p. 131. Charles Pinckney to the Speaker and Gentlemen of the South Carolina House of Representatives, 4 January 1790, Miscellaneous Legislative Papers, SCDAH. Ratification Files.

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A favorable committee report urged adoption of the proposed amendments, at the same time suggesting to instruct the state’s delegation in Congress to make efforts to procure those further amendments which had been proposed by the state in its ratification.816 The House passed that committee report on the 18th of January, the Senate concurred the next day and Charles Pinckney did not lose time to report the adoption to President Washington on 28 January.817 At the same time, Georgia had declined to ratify any amendments, arguing that only experience could show whether it would be necessary to amend the constitution at all. Connecticut and Massachusetts had not completed the ratification process in their legislatures. Virginia, too, had failed to ratify in 1789, as the different parties in the Assembly could not agree on how best to proceed without jeopardizing the prospects of obtaining further amendments along the lines of the state’s list of amendments of 1788. With ten states necessary to conclude the process and put the amendments in operation, only one more was needed in order to fulfill the requirements of the constitution that three fourths of the states ratify any constitutional amendment. With the accession of Vermont on 4 March 1791 that requirement meant that eleven states now had to ratify, meaning that both Vermont and Virginia had to do so. Vermont ratified easily in early November of 1791, while Virginia took a little longer and ratified on 15 December of the same year. That, then, was the date when the Bill of Rights entered into force, as Secretary of State Thomas Jefferson wrote to the states.818 In Massachusetts the situation was much more complicated. Despite the fact that Governor Hancock urgently recommended the passage of the “very important” amendments, the General Court did not agree as easily as might have been expected.819 While both houses considered the amendments and passed some of them, it seems that no resolution was ever passed by both houses, as Christopher Gore informed Secretary of State Jefferson in 1791: The manner, in which the business was acted upon, and the state, in which it was left by the General Court, appears, from their journals, to be as follows – The Senate agreed to 816 817

818

819

South Carolina, General Assembly Committee Report, 8 January 1790, SCDAH. Ratification Files. South Carolina House of Representatives Resolution on Amendments, 18 January 1790, South Carolina, General Assembly, SCDAH; Senate concurrence, 19 January 1790, Ms. vol. “Ratifications of the Constitution,” Film M-830, Roll 1, DNA. Ratification Files. See also SC House Journal, 18 January 1790; SC Senate Journal, 19 January 1790. Charles Pinckney to the President of the United States [George Washington], 28 January 1790, RG 11, “Certificates of Ratification,” DNA. Ratification Files. Dumbauld, Bill of Rights and What It Means Today 49f, Footnote 24. The letters, dated 1 March 1792, are in the National Archives, RG 59, Domestic Letters of the Department of State, vol. IV, p. 355f. Governor John Hancock’s speech to the General Court, 19 January 1790, Massachusetts Archives, Misc. Legislative Papers, Senate Files, #1140. Ratification Files.

Gun Culture, the Constitution and the Bill of Rights

203

all the amendments except the 1st & 2d – the House concurr’d except as to the 12th – The Senate agreed to the alteration of the house, & appointed two of their body, with such as the house should join, to bring in a bill declaratory of their assent – the house joind [sic] one of their members to the committee – It does not appear that the Committee ever reported any bill –[.]820

Another committee, which was charged with investigating desirable further amendments did issue a report but again no concrete suggestion of how to obtain these further changes was made.821 Thus, the Bill of Rights remained unratified in Massachusetts, that very state that had set the movement for amendments in motion in the first place, until the state ceremoniously ratified amendments three through twelve for the Bill of Rights’ sesquicentennial in 1939.822

6.10. Conclusion: Guns and Gun Culture during the Ratification of the Constitution and the Bill of Rights Gun culture had, at the same time, both very little and very much to do with the ratification of the Constitution and the subsequent addition of a bill of rights. During the public debates over both documents, the role of guns in society and a right to own and use guns was discussed rather little overall. Thus, it was not obviously one of the major themes of the debates. A more in-depth look, however, cannot but discover the hidden impact of gun culture on the debates and the outcome. When the Constitution was offered for public scrutiny in September of 1787, those opposed to its adoption based their argument upon the lack of public control of overarching government power. To check such power, contemporary political doctrine had a number of recipes. Delegating little power in the first place was one, keeping the delegates wielding the power on a very short leash was another. A third ingredient consisted of giving the people both the explicit ways as well as the means of controlling their government. It was in this latter field that gun culture made its impact. Firearms, many Americans believed, were an adequate way of not only preparing for the defense of the state, but also for their own proper defense. Be820 821

822

Christopher Gore to Thomas Jefferson, 18 August 1791, National Archives, RG 59, Department of State Miscellaneous Letters, p.188. Ratification Files. Report of a Committee of both Houses appointed to consider further amendments to the Constitution, 24 February 1790, Massachusetts Archives, Miscellaneous Legislative Papers, Senate Files, with #1145. Ratification Files. Massachusetts Resolutions Ratifying the First Ten Amendments to the Constitution of the United States, generally identified as the “Bill of Rights”, 3 March 1939, RG 11, Certificates of Ratification, DNA. Ratification Files.

204

Gun Culture, the Constitution and the Bill of Rights

lieving that the two would not necessarily coincide, a firm conviction had evolved over many years of constitutional development and daily custom that an armed populace was a suitable and useful means of controlling the government.823 That check, people believed, was achieved in different ways. On the one hand, forcing the government to rely upon the militia, raised from among the armed populace, for military operations required at least the attempt at consensus over the purpose of the operation: Examples abound of military campaigns waged against the will of the legislature and the electorate where the militia simply did not show up and the government had to relent. Similarly, in civil administration, the government had to rely on the militia in enforcing the law. As there was no police force other than the posse comitatus, consisting – again – of the armed population, in either England or its colonies, trying to enforce the law against stiff public opposition often enough proved difficult. Secondly, an armed population also had the possibility of openly resisting a government it deemed oppressive. Thus, keeping arms in the hands of the population that was more or less co-extensive with the electorate, i.e. generally adult white males in colonial and early national America, was another way of keeping a check on government: As an ultima ratio, the population could always oust their government at gunpoint and install a new one in its place, just as they had in the Revolution. Thus, in the eyes of many, it was part and parcel of the rights and privileges, but also of the duties of citizenship to have a gun and to be able to use it. While guns as the means necessary for making use of this ultima ratio were generally in place, the legal basis had often enough been cloudy. The Declaration of Independence contained a reasoning whereby “whenever any form of government becomes destructive of these ends [before declared], it is the right of the people to alter or to abolish it.” Yet, after independence, many colonies did not want to rely exclusively upon such insecure footing, but rather chose to enact these rights – the right to change government among them – into positive law in their declarations of rights. These ideas, enshrined in the state constitutions and their bills of rights carried over into the debates about the federal constitution, and with them the idea that guns should be kept at hand to fight oppression. A bill of rights was, by the 1780s, a deeply rooted custom in America and when it was suggested in the Massachusetts ratifying convention that a bill of rights acceptable to all would be difficult to conceive, Dr. Taylor objected, stating “that he believed any gentleman in that Convention, could form one in a few hours – as he might take the bill of rights of Massachusetts 823

Leonard Levy does not share that assessment. He finds the “notion bizarre, even loony.” Levy, Origins of the Bill of Rights 134. Saul Cornell does see the amendment as clearly having been directed against the federal government: “The original Anti-Federalist understanding of the Second Amendment was revolutionary, assigning to the state militias the awesome power to resist federal authority by force of arms.” Cornell, A WellRegulated Militia 5.

Gun Culture, the Constitution and the Bill of Rights

205

for a guide.”824 In the consensus of what would have to be included, many people would have included a guarantee of a right to have arms.

824

MA Convention Debates, 5 February 1788, in: DHRC VI:1450.

7. Conclusion

What, then, is it that I have been doing throughout these last two-hundredsome pages? First, I believe, I have answered some of the questions brought to light by the controversy surrounding Michael Bellesiles’ Arming America. Undoubtedly, Americans did have guns about them almost all the time, they used them and most would have considered them quite necessary. Thus, it seems to me, Michael Bellesiles was way off the mark when he stated that guns neither existed in substantial numbers nor had any cultural significance during the colonial and early national period. Instead, it seems no exaggeration to say that guns were almost omnipresent in the societies of eighteenth-century South Carolina and Massachusetts. However, I have gone into uncharted territory, too. The question of what those guns meant that Americans so frequently owned and used had not really been addressed in any depth. In that field, it has become obvious that firearms carried many different meanings for Americans: Used in hunting, guns signified independence and the possibility of procuring food for the family from the wilderness, but, especially in South Carolina, hunting rifles were also charged with the meaning of social standing, in that pleasure hunting was a privilege enjoyed primarily by the upper classes and jealously guarded as such. Similarly, dueling pistols signified high social standing, as settling affairs of honor in a duel was widely considered a prerogative of gentlemen. In the foregoing, I have touched upon a number of other areas in which guns played significant roles, but arguably the most significant aftereffects derived from guns used in the militia and the political myths in which the militia was seen as a cure for problems of separation of political power: Many people believed in the tenet inherited from English ‘commonwealth’ writers that an armed population would not only be able to defend its liberty vis-à-vis a foreign invader, but also against its own overweening government. Furthermore, a government that would have to rely militarily upon the militia, formed from an armed populace would have to be much more accommodating towards its citizens than one that might have an independent military force – a standing army – at its disposal. In that way, an armed population combined with a ban on standing armies at least in peacetime, government power would have been significantly diluted and the power of the people in checking their government considerably strengthened. Politically, such ideas held great sway among Americans. Following that theme, I have attempted to show how gun culture functioned as a framework in informing political decisions. In that context, American belief in guns had clear effects: Whenever Americans debated government structures and ways and means of putting their delegates and representatives on the leash,

Conclusion

207

especially those ideas of the importance of an armed population and a strong militia played a role. However, an armed population was seen as only one – albeit important – means of achieving the desired end: A responsible and responsive government that would stay within its assigned limits. The chapters dealing with the roots, origins and contexts of the Bill of Rights and – more particularly – the Second Amendment also shed some light upon constitutional interpretation. The contexts in which the Second Amendment was demanded by opponents and doubters of the constitution, their reasonings why such a document was necessary and their assumptions about how it would mitigate the constitution’s deficiencies, allow interesting insights into how contemporaries might have read and understood the federal declaration of rights at that time. Yet despite all these influences guns had in society and despite their being almost omnipresent, those who argue that guns were singularly central to life in the colonies and early states are just as much off the mark as Bellesiles. It is not that guns were not important but while Americans of the time certainly recognized the importance, usefulness and necessity of having arms at hand, they nevertheless declined to make them a fetish. Politically, firearms were part of a means to achieve a certain end – one tool in an entire tool box – in public defense and in limiting the government. But they were not an end in themselves. Similarly, Americans did not see the ownership of guns as a panacea for all societal troubles; indeed, some they associated closely with the existence of firearms in the first place: People were accidentally shot very, very frequently and the situation of kids shooting someone or being shot in such situations was a well-known and much-lamented feature of colonial towns. Americans had multi-facetted and complex feelings about guns that ranged between accepting the necessities and deploring the dangers attendant upon them. With all the praise often bestowed upon the good sense of eighteenth-century Americans for insisting upon and defending the right to use force if necessary to oust an oppressive government, it must be remembered that guns were also used for less than laudable purposes. Then as now, guns could be and were used in the commission of robberies, murder and other crimes. The custom of dueling – opposed and abhorred by many, yet defended and continued by others – had over time similarly grown dependent upon firearms, as few people continued to use swords in their affairs of honor. Perhaps most important in this field is the fact that guns were of prime importance in keeping the slave population in the South under tight control and to suppress any spark of insurrection with sheer force. These aspects are part and parcel of American gun culture in the eighteenth century, just as much as the idea that a free people must be able to defend its liberty vi et armis not only against outside foes but against its own government, too. Usually, however, this is not a part of the conversation whenever the wonderful prescience of the politicians and the political public in the 1700s in defense of liberty is the topic. Similarly, the role of

208

Conclusion

firearms in fighting and killing the Native population of North America can hardly be denied and yet is hardly ever mentioned whenever the topic of gun culture arises. Modern memory and historiography of these things are often selective. It is clear that the range of my findings is in some respects quite limited. Apart from the limitations that I have stated earlier in this book – many social and some local factors I could not explore as far as I would have wanted due to limitations inherent in the source material – it is evident that most of my conclusions apply primarily to the white majority of American colonial population – and even that, strictly speaking, only in South Carolina and Massachusetts. Based, as my work is, upon the written historical record and often a record of political proceedings, it must of necessity fall short for those who are not represented by manuscript sources and those who were little involved in political processes: This selection necessarily excludes most of the black population and most women. Thus, I can only venture an educated guess as to the feelings these groups might have held about firearms. Black slaves, it seems safe to argue, on the one hand would have associated firearms with their bondage in that these weapons enabled a white minority to maintain their domination over them. Events such as the Stono Rebellion, where rebellious slaves attempted to procure arms early in the insurrection, suggest likewise: The possession of firearms was apparently seen as an important means of leveling the playing field. As such, guns probably also carried the prospect of obtaining freedom from white domination. Hence, two very different meanings could easily have been associated with guns among slaves: The daily experience of armed repression on the one hand and the vision of freedom obtainable with arms in hand. While among whites the focus was upon maintaining liberty rather than obtaining it at gunpoint, the latter vision might have been preponderant among blacks. It seems sensible to assume, however, that much of the rhetoric used by free whites in order to justify their dependence and demand for guns – self-defense against oppression and ‘slavery’ – would have had a hollow ring for most enslaved blacks, for whom the same ideas would have had a much more concrete meaning. White women are similarly under-represented in the picture that I have painted. The fact that most manuscript material of and on political processes was generated by the participants of that process causes a bias against women in canvassing the elements of gun culture, just like it does in many other historical contexts. As women were excluded from most politics in the eighteenth century, their writings in that context would of necessity have been more sparse to begin with. On top of that, the vagaries of historical tradition have – more often than not – created more havoc on women’s writings than on men’s, adding further trouble. Accordingly, it is difficult to derive any satisfactory conclusions as to what women thought about guns and their practical and constitutional use.

Conclusion

209

At the same time, even informed speculation about women’s gun culture is much more complicated than in the case of African American slaves. As their interests are not as easily distinguishable from the supposed interest of whites at large, it is difficult to say whether their views on guns would have differed significantly. Would they have, in line with their supposed and prescribed maternal role, seen the dangers of guns more vividly than their male counterparts? Or would they have assumed the same value of firearms for the defense of the family? I cannot say. It may be interesting to pursue this issue further, but it would go beyond the scope of this present book. Similar questions might be asked of Native Americans, whose gun culture might be very interesting indeed. Firearms were adopted into Native American culture by the eighteenth century, partially with the approval or even outright support of the white colonizers, partially against attempts to keep guns away from the Native population. Guns certainly changed the traditional ways of fighting and hunting and probably rather a lot more. But any attempt to describe a historical phenomenon in culture with an oral historical tradition is always fraught with difficulty and would certainly have exceeded the limits of this work. Apart from these omissions, there is something else that I have not done, indeed have not attempted to do. I have not said what I believe the Second Amendment means, nor what it meant to contemporaries of its adoption. I have limited myself to describing its context and its roots. I have attempted to shed some light upon varieties of how Americans may have understood the amendment, its purpose and how they expected it to function in the context of the debate about the constitution and the struggle about the addition of a bill of rights. In that sense, it might be argued, my work is deficient, especially as the meaning of the amendment seems to be the only, or at the very least the foremost thing many other scholars are interested in.825 However, I believe that the attempt to nail down a meaning and then to use it as a yard stick for all further 825

Constitutional scholars Leonard Levy, Akhil Amar, William VanAlstyne, among many others, have stated their beliefs that the right to arms is an individual one. Akhil Reed Amar, “The Bill of Rights and the Fourteenth Amendment,” Yale Law Journal 101 (1992); Akhil Reed Amar, “The Bill of Rights as a Constitution,” Yale Law Journal 100 (1991); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale Universty Press, 1998); Levy, Origins of the Bill of Rights; William Van Alstyne, “The Second Amendment and the Personal Right to Arms,” Duke Law Journal 43 (1994). Contrariwise, Carl Bogus and Lawrence Cress have maintained that the right is collective in nature. Carl T. Bogus, “What Does the Second Amendment Restrict? A Collective-Rights Analysis,” in Guns, Crime, and Punishment in America, ed. Bernard E. Harcourt (New York: New York University Press, 2003); Lawrence Delbert Cress, “A Well-Regulated Militia: The Origins and Meaning of the Second Amendment,” in Whose Right to Bear Arms Did the Second Amendment Protect?, ed. Saul Cornell (Boston/New York: Bedford/St. Martin's, 2000). Saul Cornell’s view is that “[b]oth sides have the history wrong.” Cornell, A Well-Regulated Militia 2. See below, note 830, for overviews of the debate.

210

Conclusion

interpretation is a deeply flawed procedure. I feel like Leonard Levy that “[t]he constitution, designed by an eighteenth-century rural society, serves as well today as ever, perhaps better than ever, because an antiquarian historicism that would freeze its original meanings, even if discernible, has not guided its interpretation and was not intended to.”826 And while some have hailed constitutional originalism as the most honest way of interpreting the constitution, I am much troubled by its implications.827 Not only would such an understanding force American society to live by standards from more than 200 years ago, it also – silently – presupposes that a clear and authoritative meaning can be established. That, I feel, is a critical fallacy, as much of history is at least subject to different readings. Historians, Jack Rakove wrote, hitting the nail on the head, “can rest content with – even revel in – the ambiguities of the evidentiary record, recognizing that behind the textual brevity of any clause there once lay a spectrum of complex views and different shadings of opinion.”828 Many originalist thinkers do not seem to be bothered by such ambiguities very much and tend to declare intentions to have been clear and evident where historically they were neither. Instead, history is often used for “justificatory rhetoric” and from “considerations of partisan advantage,” cloaked in alleged historical ‘accuracy.’829 Just how deceptive supposed historical precision can be is evident from the scholarly treatment of the Second Amendment. Ever since the first article appeared supporting an individualist reading of the amendment, scholars have been finding acceptable support for that interpretation, as well as the collectivist one, from pretty much identical historical, political and legal records. This is exactly why the debate between the two opposing camps has become increas-

826

827

828 829

Leonard Williams Levy, American Constitutional Law: Historical Essays, [1st ] ed. (New York: Harper and Row, 1966) 3. See also Leonard Williams Levy, Original Intent and the Framers' Constitution (New York/London: Macmillan, 1988). Originalist thinkers – whether adherents of the doctrine of original intent, original meaning or original understanding – generally suggest that the original meaning, understanding or the intent of an act’s framers should prevail and that legal interpretation should be bound by such positions. See Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, 1st ed. (New York: A.A. Knopf, 1996) 7-11 for the subtle differences between the three approaches. It is interesting to note that the supporters of an individual right to arms seem to rest their argument exclusively upon originalist assumptions, but perhaps even more interesting that many of their opponents seem to accept these assumptions implicitly, as most of them seem to direct their contributions at the originalist interpretations proffered rather than making a contemporary argument. See Jack N. Rakove, “The Highest Stage of Originalism,” in The Second Amendment in Law and History, ed. Carl T. Bogus (New York: New Press, 2000). Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 9f. Rakove, “The Highest Stage of Originalism,” 11, 365.

Conclusion

211

ingly acerbic over the years.830 As long as scholars maintain the idea that the amendment has been misconstrued for the last two centuries, it is unlikely that any side will be conceding ground very soon. The Supreme Court has not been much help either in settling the debate about the amendment’s meaning. Even though Carl Bogus believes that “[i]f there is such a thing as settled constitutional law, the Second Amendment may be the quintessential example,” it has been a long time since the high court ruled on the issue.831 Last, the Court decided in U.S. v. Miller in 1939 that the federal government could limit access to firearms without breaching the Second Amendment. In that case, the court construed the amendment’s language quite narrowly:832 Only such arms as had “some reasonable relationship to the preservation or efficiency of a well regulated militia” were covered by the amendment, an assumption the court denied in the case of a “shotgun having a barrel of less than eighteen inches in length.”833 Before Miller, the last case in which Second Amendment rights had been an issue dated back to the nineteenth century. The first case ever to reach the Supreme Court had been U.S. v. Cruikshank in 1875. In a case that curtailed federal powers in the reconstruction South, the Court found that the Second Amendment limited only the federal government’s powers, but not the states or individual citizens. “The second amendment declares,” wrote Chief Justice Waite, “that it [i.e. the right to bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government [...].”834 When, a decade later, the court decided Presser v. Illinois, where it had been alleged that an Illinois law limiting the militia to such units as the state established was unconstitutional, Justice Woods quoted Cruikshank and came to the same conclusion:835 The Second Amendment limited only the federal government. The states, however, enjoyed considerable latitude in their regulation of arms: “It cannot be successfully questioned,” argued the court, that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the 830

831 832 833 834 835

Bogus, “The History and Politics of Second Amendment Scholarship: A Primer.”; Spitzer, “Lost and Found: Researching the Second Amendment.” These two, together with Saladino, “The Bill of Rights: A Bibliographic Essay” also give a pretty good overview of the debate. Bogus, “The History and Politics of Second Amendment Scholarship: A Primer,” 1. U.S. v. Miller, 307 U.S. 174 (1939). Ibid., 178. Internal quotation marks omitted. U.S. v. Cruikshank, 92 U.S. 542 (1875), 553. Cruikshank arose out of the notorious Colfax Massacre in Louisiana. See Cornell, A Well-Regulated Militia 190-97. Presser v. Illinois, 116 U.S. 252 (1886), 264f.

212

Conclusion

United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are authorized by the militia laws of the United States. The exercise of this power by the states is necessary to public peace, safety, and good order.836

Thus, with this seemingly clear-cut picture – the Supreme Court leaving states and even the federal government rather wide latitude in limiting arms possession and use – Bogus’ assessment does not seem to be far off the mark and with the court not having taken any new Second Amendment cases since Miller, indeed, the issue seems to be very much settled judicially.837 However, the fact that since Miller the high Court has enlarged the reading of many other provisions of the Bill of Rights under its doctrine of incorporation in the fourteenth Amendment has many advocates of a larger reading of the Second Amendment on their feet, arguing for its incorporation and extension, too. It is in that light that the court’s decisions have not been able to settle the public and scholarly debate about the right to keep and bear arms at all. Indeed, I believe that a number of problems stand in the way of a quick and conclusive resolution of the debate over the Second Amendment. For one, one gets the impression that a certain unwillingness exists to accept eighteenthcentury solutions for twentieth- and twenty-first-century problems: What many considered a useful means of controlling the government, of general military preparedness, of settling points of honor, fewer people seem to consider useful today. As such, it might be assumed, the acceptance of firearms as necessary tools is probably lower today than it used to be historically. Many standards of life have changed in the two centuries since the amendment was ratified: America has become much more urbanized, fewer people live in remote areas where no protection can be had but their own self-protection; military protection is exclusively provided by professional forces with no need to rely upon an armed populace anymore. However, it is just because of that situation that many people attach so much importance to their right to arms as seemingly guaranteed under the Second Amendment: To them, the fear of the overbearing 836 837

Ibid., 267f. Indeed, the Supreme Court declined to hear Quilici v. Morton Grove, 695 F. 2d 261 (7th Cir. 1982), thus confirming the right of the Village of Morton Grove, IL, to ban the possession of handguns within its jurisdiction. Hence, Cruikshank, Presser and Miller remain the only cases in which the Supreme Court explicitly addressed the meaning and extent of the Second Amendment. However, in the meantime a number of contradictory decisions in the Appeals Courts – holding in part that the Second Amendment does not protect an individual right to guns and in part that the amendment bestows exactly that right – have made it very likely that sooner or later the Supreme Court will have to step in again in order to create legal and judicial coherence. See U.S. v. Emerson, 270 F. 3rd 203 (5th Cir. 2001) and Parker v. District of Columbia, 478 F. 3rd 370 (D.C. Cir. 2007) for cases confirming individual rights, and Silveira v. Lockyer, 312 F. 3rd 1052 (9th Cir. 2002) for a case denying individual rights.

Conclusion

213

government has become or is on the way of becoming true. Ever greater limitations upon how a citizen can develop, the ever more closely circumscribed field in which he or she can make decisions independent of and unencumbered by governmental regulation may give a certain allure to owning and holding a gun, reminiscent of the ‘good old days.’ In a modern state, where the power and influence of individuals are so severely limited, a gun may well resurrect and preserve the fiction of independence and self-reliance that was associated with guns in the eighteenth century and with the founding of the American nation. Thus, even without actually owning a gun, many people might feel that the defense of the right to keep and bear arms as a token of such independence and popular influence may be an important and valuable cause. It is obvious, though, that not all Americans share the belief in that fiction. The number of those who find firearms both unnecessary, undesirable or even dangerous has certainly risen, while the number of those finding them indispensably necessary has diminished at the same time. And while certainly some people historically also deplored the presence and the often unhappy effects of guns, most would still have shared a sentiment that guns were useful in many cases. They might have lamented the dangers attendant upon the presence of large numbers of firearms and yet considered them necessary for different reasons. They argued for wide-reaching rights of gun ownership, while at the same time enacting stringent limits upon the possession of guns and while keeping slaves disarmed. They might have praised guns as a means to secure liberty, while at the same time they applied them in keeping their slaves in submission, denying them their own freedom. In the 1700s, these positions could be reconciled and positive associations outweighed negative ones. All these were not mutually exclusive propositions in the eighteenth century like they seem to be today. Why James Ransier’s statement about the necessity of arms would probably not garner as much support today as it did in the 1790s, and when and why the change occurred could be the matter of another study, a study of gun culture in twentieth-century America.

Appendix I: Example of a Probate Inventory

Appendix I: Example of a Probate Inventory

215

Inventory of Tristram Coffin. Nantucket County Probate Record Books, Vol. 1, page 8f. (Massachusetts Judicial Archives, Boston, MA).

Appendix II: Maps

Massachusetts Counties (excluding Maine), 1790. (From Long (editor). Connecticut Maine Massachusetts Rhode Island: Atlas of Historical County Boundaries, 0E. © 1995 Gale, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions) Page 372.

Appendix II: Maps

217

South Carolina Counties, Districts and Parishes Reported in the Federal Census 1790 N.B.: South Carolina repeatedly re-drew its domestic administrative boundaries, so some administrative bodies may not be shown in this map. This author has been unable to locate a more adequate map. (From Long (editor). South Carolina Atlas of Historical County Boundaries, 0E. © 1997 Gale, a part of Cengage Learning, Inc. Reproduced by permission. www.cengage.com/permissions) Page 265.

Appendix III: Universes and Sample Sizes

Berkshire Year

Universe

Bristol

Sample

Dukes

Universe

Sample

1735

24

1739

Universe

Essex

Hampshire

Universe

Sample

Universe

Sample

24

33

31

12

12

23

23

65

56

16

16

1740

39

36

56

49

5

5

1743

24

24

38

35

15

15

1752

42

38

1759

45

41

243

Sample

149

84

69

9

9

131

98

39

36

1765

3

3

36

33

126

95

9

9

1771

5

5

31

29

121

93

14

14

1779

22

22

53

46!

115

89

41

38

1786

27

27

47

42

96

77

39

36

Sum Universes Sum Samples

57

364 57

Nantucket Universe

185

Sample

125

185

Suffolk

865 149

South Carolina

Charleston District Universe

199 692

Sample

190

SC Backcountry

Universe

Sample

Universe

Sample

51

45

53

45!

51

45

70

59!

1739

61

52

9

9

1740

Universe

Sample

Year

1743

1735

62

54

89

72!

161

113!

127

95

1752

99

79

106

83

1759

81

67

89

73

1765

95

77

192

129

1771

105

83

12

12

1779

96

77

862 125

243 336

(1780)

104 747

692

82

104 577

38 (1786/87)

38

1786

38

2938

38 82

3664

Bibliography

I. Unpublished Sources American Antiquarian Society, Worcester, MA Waters Family Papers.

Andover Historical Society, Andover, MA

Phillips Family Papers in the William A. Trow Collection.

Boston Public Library, Boston, MA

George Thacher Papers, Chamberlain Collection. Ratification Files. Probate Records for Hampshire County.

Library of Congress, Washington, DC

Nathan Dane Papers. Ratification Files. Pinckney Family Papers. Ratification Files.

Massachusetts Archives, Boston, MA

Misc. Legislative Papers, Senate Files. Ratification Files.

Massachusetts Judicial Archives, Boston, MA Probate Records for Berkshire County. Bristol County. Dukes County. Essex County. Nantucket County. Suffolk County.

Massachusetts Historical Society, Boston, MA Gerry Papers. Ratification Files. Benjamin Lincoln Papers. Ratification Files. Sedgwick Papers. Ratification Files.

National Archives, Washington, DC

RG 11, Certificates of Ratification. Ratification Files. RG 59, Domestic Letters of the Department of State. Ratification Files. RG 59, Department of State Miscellaneous Letters. Ratification Files.

220

Bibliography

New York Historical Society

Miscellaneous Manuscripts, John Adams Papers, 1775-1819. Ratification Files.

Old Colony Historical Society, Taunton, MA Leonard/Raynham Iron Works Collection.

South Carolina Division of Archives and History, Columbia, SC

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