Washington University in St. Louis Washington University Open Scholarship All Theses and Dissertations (ETDs) January 2010 Unbound by Law: Association and Autonomy in the Early American Republic Kevin Butterfield Washington University in St. Louis Follow this and additional works at: https://openscholarship.wustl.edu/etd Recommended Citation Butterfield, Kevin, "Unbound by Law: Association and Autonomy in the Early American Republic" (2010). All Theses and Dissertations (ETDs). 50. https://openscholarship.wustl.edu/etd/50 This Dissertation is brought to you for free and open access by Washington University Open Scholarship. It has been accepted for inclusion in All Theses and Dissertations (ETDs) by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. WASHINGTON UNIVERSITY IN ST. LOUIS Department of History Dissertation Examination Committee: David Konig, Chair Iver Bernstein Howard Brick Randall Calvert Peter Kastor Andrew Rehfeld UNBOUND BY LAW: ASSOCIATION AND AUTONOMY IN THE EARLY AMERICAN REPUBLIC by Kevin Charles Butterfield A dissertation presented to the Graduate School of Arts and Sciences of Washington University in partial fulfillment of the requirements for the degree of Doctor of Philosophy August 2010 Saint Louis, Missouri Abstract This dissertation examines how the concept of voluntary membership evolved between the 1780s and the 1830s, a period in which men and women created thousands of groups seeking everything from fraternity to profit to social reform. Before observers foreign and domestic would begin to identify the voluntary association as a defining characteristic of post- Revolutionary American culture, Americans who organized and joined such groups had struggled for decades to determine what membership ought to look like, what rights and duties the act of joining should entail. By the time Alexis de Tocqueville famously noted in 1831 that Americans were “forever forming associations,” they had come to some answers. A revolutionary idea evolved unsteadily through the practical, day-to-day experiences of membership, as men and women began to insist upon basic principles of procedural fairness: the idea that people carried rights into every social relationship. Historians have yet to examine these debates over the norms of belonging, largely owing to the long-lasting influence of Tocqueville’s rosy picture of spontaneous cooperation and, more recently, Jürgen Habermas’s theory of associations in the public sphere. But Americans of the post-Revolutionary generations were anxious and uncertain about private governing power and the potential abuses of even voluntary commitments. In groups as diverse as women’s literary societies, men’s political fraternities, business corporations, and mutual benefit societies, Americans responded to the challenges they perceived by erecting procedural protections for members and by embracing a legalistic rather than an affective understanding of what it meant to belong. For they were anxious, too, about how they could make these groups work, how they could make collective action a reality in an age when even the survival of the new republic appeared tenuous. ii Innovation born of conflict within the groups—especially, efforts to forestall and to resolve disputes over the meanings, burdens, and benefits of voluntary membership, many of which wound up in court—shaped the post-Revolutionary associational landscape. While there continued to be encomia about the natural sociability of man and the tender ties of affection, in practice the American joiners that Tocqueville described had embraced a wholly different model of associated action. The rules by which the joiners organized themselves evinced a trend toward greater precision and an increasing emphasis on legalistic formalities. What is more, law-making and judicial institutions became comfortable assuming a role as superintendent over the actions within private societies, holding them to broad standards of justice and resolving the conflicts that arose within them, such as contested expulsions, and thereby setting the furthest limits of private governing authority. They created a substructure for Americans’ efforts at collective action, one that evinced a pervasive liberalism, in that it was grounded in an individualistic common law, legal guarantees of the rights of individual members, and a reliance on adversarial legalism and procedural formalities to reconcile conflict, even in these ostensibly private, wholly voluntary groups. The conflict-driven process of defining voluntary membership had a second effect: Americans of this period came to accept the pluralist makeup of their society, in which myriad groups pursued divergent ends rather than a singular, public good. They could do so because, internally, most of these groups had begun to look the same, and those few associations that did appear to threaten the autonomy of their members, such as the Freemasons, came to stand out in ways they had not just a generation before. By about 1840, certain conceptions of voluntary membership had become so generally accepted that the judicial superintendence of private associations would become less direct, resting on broad schema of procedural expectations. iii Acknowledgments The research for this dissertation was supported generously by the Department of History of Washington University in St. Louis as well as by the American Culture Studies program, particularly the Lynne Cooper Harvey Fellowship. Several archives and other research institutions also provided support for the research and writing of this work, and it gives me great pleasure to be able to acknowledge, in writing, my gratitude for that help: the Colonial Williamsburg Foundation; the Connecticut Historical Society; the Francis A. Countway Library of Medicine; the Gilder Lehrman Institute of American History; the Henry E. Huntington Library; the New England Regional Fellowship Consortium; the New Hampshire Historical Society; the New-York Historical Society; the New York State Archives; the Rhode Island Historical Society; the Robert H. Smith International Center for Jefferson Studies; and the Virginia Historical Society. iv Table of Contents Abstract………………………………………………………………………………..ii Acknowledgments………………………………………………………………….…iv Introduction………………………………………………………………..…………...1 Chapter 1 Religious Associations: The Voluntary Principle Applied…………………………...41 Chapter 2 Fraternal Societies: Brotherhood and Political Autonomy………………................ 107 Chapter 3 Mutual Insurance: The Bonds of Membership……………………………..……… 166 Chapter 4 Business Corporations: The Corporation as Membership Association…….……… 228 Chapter 5 Societies Formed by and for Women: The Culture of Legality in Practice .……..... 283 Chapter 6 Mutual Benefit Societies and Legal Pluralism…………………………………....... 318 Chapter 7 Labor Unions and an American Law of Membership………………………….….. 370 Conclusion…………………………………………………………………………..430 v Introduction In 1813, William Stewart found himself estranged and expelled from the Philanthropic Society in Pennsylvania, one of countless mutual aid organizations that had formed in the young American republic to allow members, who made small contributions, to make a call on the society’s funds in a time of need. Stewart had told them of an illness and, according to the rules of the institution, had presented a physician’s bill for forty dollars, which he claimed to have paid, and he asked for compensation. When it became evident that the doctor’s bill had, in fact, been for four dollars and that Stewart had added a zero in an obvious attempt to defraud his fellow members, his request was denied and his membership promptly terminated according to the society’s constitution, specifically, the clause permitting the expulsion of those “concerned in scandalous or improper proceedings which might injure the reputation of the society.”1 Shamelessly, Stewart went to court. The Philanthropic Society had been formally incorporated, as had many similar organizations in Pennsylvania, either by special charter or under one of the first general incorporation acts in history, passed in 1791 to permit the speedy incorporation of literary, charitable, and religious associations. Thus, Stewart could call for a writ of mandamus to compel the society, in a formal sense a creature of the state and an instrument of state authority, to restore him to “the standing and rights of a member of the Philanthropic Society.” He asserted that the question of whether his 1 Commonwealth v. Philanthropic Society, 5 Binn. (Pa.) 486 (1813); William Miner to Jacob Beck, Apr. 1, 1817, folder 7, Mandamus and Quo Warranto Proceedings, Supreme Court of Pennsylvania, Eastern District, RG-33, Pennsylvania State Archives. 1 conduct had, indeed, injured the reputation of the society had not been formally noted in the minutes of his expulsion proceedings. Chief Justice William Tilghman would have none of it—“a society that would not be injured by such a proceeding as this, on the part of one of its members, must be a society without reputation”—and he denied mandamus.2 The episode itself reveals a great deal about how Americans conceived of voluntary membership in the early decades of the United States. Stewart knew where to turn if he was unhappy with decisions made regarding his “rights” as a member, and he couched his claim in terms of proper procedure and legalistic formality. The society, too, in its affidavit, knew to invoke specific