Ep. 24: Court & Country in the First British Empire

Anthony Comegna: We’re inclined to look at 18th century America and see the grand legacy of freedoms won. The colonists, after all, governed themselves and they had little need for imperial management from Great Britain. Colonists all over disparaged the idea of monarchy and Tom Paine smashed it to pieces. The world’s most powerful state lost its most vigorous appendages after the revolution of ’76 and the settlers there expanded all sorts of civil rights to new cohorts over time.
We [00:00:30] remember the triumphant victory of a new nation state, or thirteen depending on your view of things, and the gains made by some toward exercising a greater control over that state, but revolution bred counter-​revolution, as so often happens and we’re so quick today to remember the freedoms we won in an age of heroes. But what about the freedoms we lost?
Welcome to Liberty Chronicles, a project of Liberatarianism. [00:01:00] org. I’m Anthony Comegna.
The Revolutionary period, the Constitutional era, the early national period, the Jacksonian era, each of these major swats of time dramatically shifted the way Americans conceived of freedom. In the early model, the early colonial period, liberty and freedom were characterized by the common ground of the village, your locality, the local knowledge developed there, the customary rights and powers [00:01:30] of the people, the rulers, the aristocrats and the king, all balanced against one another. Political participation came not from your vote, but your involvement in the neighboring process in your community. There was little talk about individual rights and much about the rights of Englishmen.
In the constitutional and early national periods, the great big documents of the day, the Constitution, the Bill of Rights, the State Constitutions, each of them usurped the popular right to rebellion. Liberty [00:02:00] then was about supporting the things that had been won during the revolution.
In the Jacksonian and later periods, conceptions of freedom shifted toward individualism. This is the era when private property becomes sacrosanct, universal suffrage is the way of life. Your personal connections to politics were essential to your place within the larger society. This was a world marked by national expansion, where the individual projected their own greatness out into the deeds [00:02:30] of the nation, or saw the nation somehow justifying themselves and their actions as individuals. This was the era of abolitionism and associations, when people once again joined together to pursue greater liberty, but, this time, it was the individual that everybody recognized as central, not the collectivity.
In the colonial period, liberty was largely defined as a reaction against the kind of problems people faced in the old world and the problems they all encountered together in [00:03:00] the new world frontier. Liberty was something practiced in major communal institutions, in the household, the neighborhood, the congregation. People engaged in a process of neighboring, which was terribly important to the function of the larger society. The process of neighboring required popular participation in the courts and in policing any breaches of the law after the fact. The people must display their consent to the degree that they can through their representative institutions who passed laws, but also after the fact, when the law [00:03:30] was actually being enforced. People had to agree to them in both cases, before it could be considered popularly legitimate.
Colonial Americans really didn’t see themselves as mere subjects of the king and his empire, nor were they simply spectators to the government run by others. Recent history, especially the English Civil War had empowered popular forces to organize themselves and inject their voice into the public debate like they’d never been able to before. Yes, the king was still supposed to be God’s viceroy [00:04:00] here on earth, benevolently ruling over us all for the common wealth of his people, but kings often failed at this. History showed this, theory showed this, there was nothing special about them, not necessarily. But they were still God’s viceroys.
Politics then in the first British Empire took a court versus country caste. The country represented the vast popular interest, the people spread across the countryside, the working people, marginalized groups, whoever was not exactly in [00:04:30] the power elite was part of the country. The court on the other hand was made up of the king, his counselors and any corporate interest that surrounded him. The country did not necessarily dispute the court’s existence. But they did act to constrain individual aristocrats ambitions, using the historically established methods in arenas for popular protest open to them.
One such arena for protest was the courtroom. The common person’s power was in no serious way linked to their status [00:05:00] as a voter. Consent by ballot was still reserved to the few and most people could not vote. Common people did, though, possess something that elites scattered across the British Empire could not. They had specialized, localized common knowledge that could be brought to bear on any particular case. Officials across the broad expanse of the Empire needed these common people to locate and capture outlaws and to define community standards and take place and even witness the results of any breaking of laws. [00:05:30] Without the many forms of popular consent to the law after its passage, any actual enforcement was a dead letter.
In the colonial period, wealthy people controlled the offices and voters were supposed to be represented in legislatures, but the average white male did not vote and he was represented in juries. Juries were supposed to be interchangeable with the accused and the audience witnessing the trial. These were the men of the neighborhood and they were really supposed to be in charge of the proceedings. [00:06:00] Some colonial thinkers said that judges may have a place of prestige and privilege in the courtroom, but really they didn’t even have to say anything. They did not necessarily have much power and people increasingly said they might as well just remain silent throughout a trial. One Massachusetts minister even commented the jurors were, in fact, temporary judges.
In the colonial era, notions of deference in class were still very strong, both for voters and for jurors, [00:06:30] but they were giving way to notions of common dignity and equality, that people were fundamentally equal, and any class barriers set up, especially in a place like a courtroom, were illegitimate, false, created basically by the state. If commoners were, in fact, worthy of dignity and even respect, if they received this in the courtroom, they could also expect a certain level of humane treatment, even recognition of their equal rights before the law when they were on trial.
In the trial of Sir Richard Rum, readers [00:07:00] experience a mid-​eighteenth century American trial much like contemporaries would have. Sir Richard is accused of violently interfering with his neighbors, breaking all community standards of ethics. The court informs Richard of his charge. Here’s his statement and proceeds to call forth the agreed parties one after another.
Speaker 2: The indictment and trial of Sir Richard Rum, clerk.
“Sir Richard [00:07:30] Rum of the county of Flip. Thou standest here indicted for that thou, not regarding the good of thy fellow creatures, hast, in a bold and audacious manner, knocked down, killed, maimed, and despoiled many of his majesty’s good and liege subjects. Also, that thou hast, for many years, and still dost, hold a traitorous conspiracy with Mr. Punch, and Mr. Flip, two as notoriously wicked as thyself, by and with whose assistance, thou dost intoxicate the heads of good, honest, [00:08:00] well−meaning people, to the ruining of their persons, and the impoverishing of their estates; so that many a poor man’s wife and children sit at home, wanting what is sinfully wasted in your extravagant company, as will appear by many credible witnesses, who are deplorable instances of the truth of what is here alleged against you. All which facts are contrary to the good and wholesome laws of the kingdom, as well as against the king, his crown and dignity.
What sayest thou, art thou guilty or not guilty, of what thou here standest indicted?” [00:08:30] Sir Richard:” Not guilty.” Clerk: “How will you be tried?” Sir Richard: “By the opinion of all judicious persons.” Clerk: “Crier, make proclamation.” Crier: “O yes, O yes, O yes! If any person can inform the Court of any murders, treasons, or other misdemeanors committed by the prisoner at the bar, let them come into the court, and they shall be heard in their several orders. Call John Vulcan, the blacksmith.”
[00:09:00] Vulcan: “I am very well acquainted with the prisoner at the bar. I am a blacksmith by trade, and being liable to much heat, I have, for many years, had an unquenchable spark in my throat, which I might quench with a pot of middling beer or cider; but happening to be acquainted with the prisoner, I became a lover of his company, and when I am once got into his company, he scarce ever parts with me, till he hath catcht me fast by the noddle, tript up my heels, and laid me fast on my back, so that I have not [00:09:30] been able to get up to go to work for two or three days, and I am sure Sir Richard ought to be punished”.
Crier: “Call William Shuttle, the weaver. Shuttle: “I am but a poor man, and have a wife and a great charge of children; I am a weaver by trade, and I can never sit at my loom, but this wicked companion is enticing me from my work, and is never quiet till he gets me to the tavern, and when I am there, I have no mind to come home again; and then he picks a quarrel with me, and abuseth me; sometimes [00:10:00] he sets upon me like a robber, and ties me neck and heels, and throws me into a ditch, and there leaves me till next morning, and not a penny in my pocket, so that if you hang him or quarter him, you have my free consent.”
Clerk: “Call Thomas Snip, the tailor.” Snip: “For my part, I know the prisoner at the bar very well, and I am sure I know no good for him; I always loved Mr. Wheat, the baker, better than Sir Richard Rum. But one night, as I was going home from work, I espied [00:10:30] Sir Richard and two or three good fellows, a quarreling, and what does I but step in among them to see if I could make them friends. But Sir Richard, picking a quarrel with me, gave me such a knock on the crown that I could not work for a fortnight after. And what is still worse, he has got acquainted with my wife, and sends her home every night in a scolding mood, and for my part, unless I am as boozy as she, I dare neither speak nor stir, but am forced to be a true Passive−Obedience man. [00:11:00] I hope this Honorable Bench will take it into consideration, and put him to death, or banish him out of the land.”
Clerk: “Call James Wheat, the baker.” Wheat: “Most Honorable Judge, I have this to relate concerning the prisoner at the bar, that I have been daily and hourly ill used by him. I have been a man esteemed of by lords and knights, and none could please better than James Wheat the baker; but the case [00:11:30] is now altered; Sir Richard Rum is preferred before poor James Wheat, by almost all persons, of all ranks and sexes.
Many men now a days fall down before him, and worship him, and the reverence they have paid him, has brought many to extreme poverty, and some to the halter, for they have stolen and robbed, to enable themselves to keep company with the wretch, when, at the same time, he is such an ungrateful monster, that if they were starving, he would not give them one meal’s victuals, and the more any person loves [00:12:00] him, and keeps him company, the more they are despised and disregarded by him; I hope this Court will take it under consideration, and, as a common disturber of the peace, and a grievance to mankind, far beyond any thief, it’s not only particular persons, but whole provinces that are sufferers by, and appear against the prisoner.“
Anthony Comegna: Sir Richard’s most eager defenders are the free thinking, dissenting Quaker, working people, and the West Indies Sugar Slave Complex with their [00:12:30] own sort of local knowledge of course. His trial highlights that officially recognized interests of common white colonists were becoming more important, more mainstream, but they left the interests of black slaves to the privacy of plantations. Their liberties were already long lost.
Speaker 2: Barbados and Islands. “Whosoever speaks against Sir Richard Rum, can never be any better than enemies to the Commonwealth. For, without the help of Sir Richard, we that live in the [00:13:00] Islands could not subsist; for he is the best branch of our trade, and if we should fail and sink in our trade, what, I pray, would become of poor Ireland? How would they dispose of their butter, beef, and Great Britain would be at no small loss. Besides, what would New England do with their horses, refuse fish and lumber, and provisions? And what would New York, New Jersey and Pennsylvania do with their bread, beer, and other provisions? By this it is plain, and may be made [00:13:30] to appear evidently, that upon us depends the prosperity of trade in many other countries. And if our trade should decay, how would the merchants do to employ builders in New England? And then, what would they do with their timber, hemp, tar and iron, which they begin to make there in considerable quantities? And how would the poor be employed?”
Clerk: “Call Newport on Rhode Island.” Newport: “We are sensible that many persons, in this place, have kept this [00:14:00] prisoner company too much, and have hurt themselves not only in their good name, but in their estates, and, without doubt, have contracted much guilt; but, at the same time, we cannot find how the prisoner at the bar is guilty, for as he said in his own defense, he forceth nobody. And whereas it is alleged he is crafty and insinuating, and also ungrateful; we do not find that he deceives sober, moderate persons. And as for his ingratitude, the best way is, not to suffer him [00:14:30] to come under any obligation to them. We are sensible that he has done much good to many men in this place; he hath raised many from almost nothing to a great estate, in a very few years, and helped to build many good vessels, and employs a great number of men daily, both by sea and by land, and most of them that do not abuse him, thrive.”
Clerk: “Call friend, John the Quaker.” Sir Solomon: “Friend John, what hast thou to say [00:15:00] in behalf of the prisoner at the bar?” Friend John: “For my own part I may say, he hath many times comforted me, both at sea and on land; and, if the affirmation of a Friend may be accepted, I can assure the Court, that I never knew the prisoner to abuse any person, or give offense to anybody till they first abuse him; for I think he hath made it appear, that he forceth nobody, but is a peaceable, honest neighbor, also profitable to such who have so much prudence as to keep him safely, and [00:15:30] to dispose of him seasonably; and, therefore, I am persuaded that no man, in his right wits, will condemn him; nay, the judge and jury may plainly see these accusers blame the prisoner for their own faults.”
Clerk: “Call Mrs. Hostess and Mrs. Fillpot.” Enter Mrs. Hostess. Mrs Hostess: “What impudent fellows be they, that say they would have such a famous worthy man’s life taken away? If you take away his life, you take away mine [00:16:00] too.“
Anthony Comegna: Outside of the courtroom, common people had an essential position enforcing punishments. Dozens of different shame rituals and public tortures were used to bring people into compliance with community standards. Even a public presence at mass executions was seen as necessary to pass legitimacy over the sentence. These crowds were hardly extralegal. They were in fact part of the whole framework here. The law alone was not sufficient [00:16:30] to compel behavior. It was certainly not sufficient to punish breakers of the law, and elites in the Colonial Era knew this. The difference between a crowd and a mob was the actions that the individuals who composed them took. If you behave legitimately and within your proper sphere, then you were part of the public, the people, the body politic, recognized officially by the ruling aristocracy. If you deviated even a little, like having black skin or red skin, being a woman or being under age, then you were part [00:17:00] of an unruly, illegitimate mob, and elites in the era while they could not necessarily ignore mobs, they could unite with the growing middle class to restrain its legitimacy.
Over centuries the process of enclosure had stripped Britains of their sustenance and cast half the population into wagedom by the early 18th Century. They clustered in cities, no longer participating in countryside feudalism. From the urban slums people pioneered new forms [00:17:30] of popular consent and politicking. With no means to produce bread on their own, they formed flour riot mobs to forcibly strip corporate capitalists of their stores and power. There were fewer bread riots in America to be sure, but they brought with them from Europe the same ideas about popular rights and popular power.
In the Colonies people thought of their liberty as increasingly dependent upon interdependence. Popular forms of organization pioneered during this period, [00:18:00] the 1740s, 1750s, 1760s, they enabled, concerted, directed, planned community resistance later. By the 1760s the common people out of doors were the ones leading the mass boycotts, the nonimportation and noncompliance agreements that provoked the Revolution and made it successful.
We remember the Revolution from above as told by Jacksonian nationalists, like George Bancroft, or the latest best selling hero worshiping hard cover, but the movement actually [00:18:30] began spontaneously from below. The truth is, the Aristocrats joined them. This was the origins of what historians call “the first patriot coalition”, the one that made the war possible and won independence. From the start there were the origins of a second patriot coalition of conservative conspirators, organizing a coup d’etat against popular local governance. The greatest trick they ever pulled was convincing us they didn’t exist.
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