Where Subjects were Citizens: The Emergence of a Republican Language and Polity in Colonial American Law Court Culture, 1750-1776 Robert Mark Savage Submitted in partial fulfillment of the Requirements for the degree of Doctor of Philosophy in the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2011 © 2011 Robert Mark Savage All Rights Reserved ABSTRACT Where Subjects were Citizens: The Emergence of a Republican Language and Polity in Colonial American Law Court Culture, 1750-1776 Robert Mark Savage This thesis examines the role of the colonial American jury, particularly the petit jury, during the quarter century leading up to the American Revolution. The thesis argues that the colonial jury at the inferior and superior court levels was central to a “law court culture” that provided colonists with the education, language and experience to assume the responsibilities of participatory, autonomous citizenship, as opposed to a passive subjecthood that deferred to social and political authority. Within their law court culture, colonial American jurors acted as powerful, independent decision makers, representatives of their communities judging matters of law as well as fact. Jurors sometimes even acted as arbiters in highly charged political disputes, to challenge the power of governors and of the empire itself. When outside British forces threatened this colonial American law court culture and the independence of those citizen jurors, Americans began to perceive themselves as a people apart from the English, uniting to preserve and protect their institutions, particularly their law court culture. TABLE OF CONTENTS Introduction: Voices of “the people” 1 Chapter 1: Colonial Law Court Culture and the Jurors at its Heart 31 Chapter 2: The Jury in the Inferior Courts of Massachusetts 87 Chapter 3: The Jury in the Superior Court of Massachusetts 163 Chapter 4: The Political Role of Jurors on the Eve of Revolution, Part I 242 Chapter 5: The Political Role of Jurors on the Eve of Revolution, Part II 316 Conclusion: Where Subjects were Citizens 390 Bibliography 394 i TABLES 2.1 Plaintiff damage claims sought and awards (judgments) actually made, Ipswich Inferior Court, March 1749 session 106 2.2 Plaintiff damage claims sought and awards (judgments) actually made, Salem Inferior Court, July 1749 session 109 2.3 Plaintiff damage claims sought and awards (judgments) actually made, Newbury Inferior Court, September 1749 session 115 2.4 Plaintiff damage claims sought and awards (judgments) actually made, Salem Inferior Court, December 1749 session 117 2.5 Plaintiff damage claims sought and awards (judgments) actually made, Ipswich Inferior Court, March 1752 session 121 2.6 Plaintiff damage claims sought and awards (judgments) actually made, Salem Inferior Court, July 1752 and Newbury Inferior Court, September 1752 sessions 126 2.7 Plaintiff damage claims sought and awards (judgments) actually made, Salem Inferior Court, December 1752 session 135 2.8 Plaintiff damage claims sought and awards (judgments) actually made, Ipswich Inferior Court, March 1770 and Salem Inferior Court, July 1770 sessions 140 2.9 Plaintiff damage claims sought and awards (judgments) actually made, Newbury-Port Inferior Court, September 1771 session 146 2.10 Summary tabulation of all inferior court plaintiff damage claims sought and awards (judgments) actually made in all tables 161 3.1 Plaintiff damage claims sought and awards (judgments) actually made, Superior Court of Judicature, Suffolk County, August 1769 session 176 3.2 Plaintiff damage claims sought and awards (judgments) actually made, Superior Court of Judicature, Middlesex County, October 1769 session 183 ii 3.3 Plaintiff damage claims sought and awards (judgments) actually made, Superior Court of Judicature, Essex County, November 1769 session 193 3.4 Plaintiff damage claims sought and awards (judgments) actually made, Superior Court of Judicature, Suffolk County, February 1771 and Cumberland and Lincoln Counties, July 1771 sessions 195 3.5 Plaintiff damage claims sought and awards (judgments) actually made, Superior Court of Judicature, Bristol County, October 1771 session 207 3.6 Plaintiff damage claims sought and awards (judgments) actually made, Superior Court of Judicature, Middlesex County, October 1771 and Essex County, November 1771 sessions 211 3.7 Plaintiff damage claims sought and awards (judgments) actually made, Superior Court of Judicature, Suffolk County, February 1772 session 220 3.8 Plaintiff damage claims sought and awards (judgments) actually made, Superior Court of Judicature, Plymouth County, May 1772, Essex County, June 1772 and Suffolk County, August 1772 sessions 228 3.9 Summary tabulation of all superior court plaintiff damage claims sought and awards (judgments) actually make in all tables 241 iii ACKNOWLEDGMENTS I owe many debts to those who have been generous with their time, help and support during my labors here. First, I am deeply grateful to my dissertation director and sponsor, Richard Lyman Bushman, whose wise counsel and advice strengthened this thesis at many points along the way. I have benefited tremendously from his criticisms and suggestions. Most important, Richard Bushman extended incredible generosity, kindness and support even before I began work on this dissertation. During my graduate studies at Columbia University, I asked him for his help time and again. I will always be thankful that every time I asked, he said “yes”—beyond what any normal sense of duty required. I am also grateful for the advice and support of Herbert Sloan, whose comments and criticisms at every stage of every chapter kept me from making several embarrassing errors. His knowledge of the literature, primary and secondary, proved invaluable as I worked through the issues here. Although I know there are points in this thesis with which he still takes issue, working with him always was, in every way, a joy. Elizabeth Blackmar, Christopher L. Brown and Patricia Bonomi also have offered extremely helpful and kind suggestions, criticisms and advice that have allowed me to improve the final product. While Mark von Hagen did not assist me in the writing of this dissertation, earlier study with him on nationalism and the problems of late-Imperial Russia’s and the Soviet Union’s borderland nations proved of immense value to my thinking on related questions here. Meanwhile, in a different but very real way, I also have benefited from the wisdom of strangers—historians whom I have never met. This iv dissertation would not have been conceived but for the stimulation of Edmund S. Morgan’s Inventing the People: The Rise of Popular Sovereignty in England and America , which, with several of his other works, prodded my thinking in various ways and directions. Along with Benedict Anderson’s Imagined Communities and Eugen Weber’s Peasants Into Frenchmen: The Modernization of Rural France, 1870-1914 , these scholars have left me asking more questions than I have yet been able to answer. I have still to work through the idea that nations are “invented” or are as recent an imagination as all that. At any rate, these scholars, in person or through their writings, have ignited my interest in who, exactly, were “the people” before the creation of an American nation—the original, organic colonial societies that would become that nation. Finally, I wish to thank two colleagues: Vincent Napolitano, for his encouragement and counsel at several points during my study at Columbia, and Judith Anne Wink, for her long friendship and for her keen editorial eye as I prepared this thesis for deposit. Beyond all others, I am grateful to my wife, Meredith Lisagor Savage, whose love and support throughout has meant more than words can say. v DEDICATION In Memory of my father, Robert Moore Savage, and with Gratitude to my mother, Bettie J. Savage and to my wife, Meredith Lisagor Savage vi Introduction: Voices of “the people” The jury is both the most effective way of establishing the people’s rule and the most efficient way of teaching them how to rule. —Alexis de Tocqueville 1 In his celebrated analysis of the early political culture of the United States, Democracy in America , Alexis de Tocqueville sketched an image of something almost invisible to most citizens at the time—a vast source of power that even government could not control. Indeed, according to Tocqueville, America’s governments were inherently weak, beginning at the national level, where the central government’s “sovereign commands” required the aid of “[m]unicipal bodies and county administrations” to be executed. Without the compliance of local governments, the nation’s “representative, the central government,” could do precious little. But even local governments had their limits in the face of a seemingly invisible and irresistible higher power. As he considered American political life in the Jacksonian era, what concerned Tocqueville was not the force of the national state, nor even that of lower political organs. What worried Tocqueville, rather, was the highly coercive power of the society itself. He expounded on these fears in his well-known warnings against the “tyranny of the majority.” In nearly every aspect of social and political life in the young republic, a tidal wave of majority opinion or belief threatened to inundate any contrary interest, dictating everything from artistic taste to 1 Alexis de Tocqueville, Democracy in America , ed. J. P. Mayer; trans. George Lawrence (New York: Harper, 1966, 1969), 276. (Cited hereafter as Tocqueville.)