The Making of Tocqueville's America

Law and Association in the Early United States

Kevin Butterfield

• Publisher: University of Chicago Press
• Year: 2015
• Print ISBN:
  9780226297088
• eBook ISBN:
  9780226297118
• Topic: History
• Subtopic: North American History
• Index: History

Alexis de Tocqueville was among the first to draw attention to Americans' propensity to form voluntary associations—and to join them with a fervor and frequency unmatched anywhere in the world. For nearly two centuries, we have sought to understand how and why early nineteenth-century Americans were, in Tocqueville's words, "forever forming associations." In The Making of Tocqueville's America, Kevin Butterfield argues that to understand this, we need to first ask: what did membership really mean to the growing number of affiliated Americans?

Butterfield explains that the first generations of American citizens found in the concept of membership—in churches, fraternities, reform societies, labor unions, and private business corporations—a mechanism to balance the tension between collective action and personal autonomy, something they accomplished by emphasizing law and procedural fairness. As this post-Revolutionary procedural culture developed, so too did the legal substructure of American civil society. Tocqueville, then, was wrong to see associations as the training ground for democracy, where people learned to honor one another's voices and perspectives. Rather, they were the training ground for something no less valuable to the success of the American democratic experiment: increasingly formal and legalistic relations among people.

Part One

The Concept of Membership in America, 1783–1815

Just as soon as the numbers of private, voluntary associations in the new American republic began to grow in the closing years of the eighteenth century, it became clear that they would prove disruptive. Thirteen republics had emerged from the Revolution, but each one had been established with hopes that it would speak and act with one voice on behalf of a shared, common good. As new forms of collective action came into being, it appeared that these new republics would soon be divided and split into various, particular interests. In time, and with experience, most people in the early republic would come to decide that this kind of fracture, these kinds of divisions, did not bode ill for the future of the United States. Initially, however, the associational diversity of post-Revolutionary America appeared to be utterly and completely divisive.

There was another way to see things, however. From the perspective of any man or woman who chose to join the ranks of a fraternal club, reform society, or any other kind of voluntary group, such associations were not divisive at all. They were unifying. Voluntary societies did not drive people apart. They brought them together.

The first generation of citizens of the new United States, between the conclusion of their successful War of Independence and the end of the War of 1812, was forced by daily experience and by the crucible of conflict to come to some shared understandings of the meanings and consequences of consent, coercion, and membership in the rapidly growing numbers of voluntary associations in the new nation. That last concept—membership—is one too easily taken for granted in a modern age of membership drives and annual membership renewal forms. But there was something new here, and it had to be defined. These newly created member-to-group relationships were unique. They were not like membership in a state, though the ways in which the two were different, particularly with the advent of written constitutions and explicitly consent-based governments, were not entirely clear. John Adams, in his draft preamble for the 1780 Massachusetts Constitution, for example, had noted that this “body politic” was “formed by a voluntary association of individuals.” Like the new republican governments of the new American nation, however, these voluntary groups desired unanimity but nearly always found it fleeting. And so they seized upon the rule of law and procedural fairness as a means of creating fair but effective modes of private government.

Part 1 will explore how, in the everyday experiences of membership, there emerged a growing cultural consensus about what voluntary membership ought to look like and what it decidedly should not entail. In chapter 1, three important cultural developments will be examined. First, by looking at the travails of the embattled Society of the Cincinnati the chapter will examine the growing belief that effective voluntary association requires formalities and procedural regularity. No group can rely on mere affection or friendship. Second, I will begin a theme that will be continued in part 2: the increasingly sophisticated ways in which Americans embraced these kinds of formal practices within their own associations, by means of constitutions, bylaws, and resolute attention to procedure and predictability. Third, I will show just how pervasive these cultural practices were becoming by tracing the ways that they came to characterize practices in what was, for many American men and women, the most important of all associational connections: their own churches.

Chapter 2 will look at more explicitly political influences on the formation of a shared post-Revolutionary conception of voluntary membership. An important and revealing refrain emerged in the political debates of the 1790s and the first decade of the nineteenth century, when the first party debates between Federalists and Republicans took shape: the tension between collective political action and the ideally free and independent mind of the voting citizen. Many Americans, especially those who founded or joined one of the dozens of Democratic Republican societies that appeared throughout the nation during President George Washington’s second term in office, believed that the creation of associations for political information and expression would make them better citizens—and keep the republic safe from harm. Their Federalist critics saw such groups as the wellspring of a terrifying political compulsion over the minds of men. One result was that the trends discussed in chapter 1, the emerging idea that members of nearly all kinds of voluntary associations ought to be knitted together by formalized and relatively attenuated bonds, found a powerful, post-Revolutionary impetus in the emergence of partisan conflict.

Chapter 3 will begin to show the ways that the Anglo-American legal culture of the early United States gave a particular shape and bent to the associational landscape that the first generations of American citizens were beginning to form among themselves. The cultural and political forces of the post-Revolutionary United States produced a jurisprudence that allowed civil rights claims to operate even within the ranks of private, voluntary associations, a jurisprudence founded on the idea that all groups comprised the same fundamental units—rights-bearing individuals. Some of these rights were defined in the articles of association (usually called “constitutions”) of the group itself, but many were not. Some were creatures of the common law, which offered some useful terms, concepts, and remedies for those who sought to keep private, associational authority within positive bounds. And some of these rights were products of the American Revolution, of a republican belief in the idea that no governing authority, public or private, could pretend to certain kinds of authority over anyone, even one who had voluntarily chosen to be there.

Some of these struggles soon found their way into court. And the trials provide more than anecdote. It was in the arguments of counsel, the verdicts of juries, and the opinions of judges that conceptions of voluntary membership were tested and defined. There, the furthest limits of private governing authority were set. And, as it happened, all of the themes explored in part 1 were brought out into the open in a case decided by the Pennsylvania Supreme Court in 1810, after William Duane had a competing Philadelphia newspaper editor, John Binns, expelled from the St. Patrick Benevolent Society, which had been incorporated by the state of Pennsylvania, and from four other, unchartered associations. Binns took none of those expulsions lying down. He told the world of the tyrannies and injustices on display in each and every expulsion. He invoked ideas that resonated in the age in which he lived. He declared his certainty that it was not friendship that bound him to his fellow members, but rather rules and founding documents. He proclaimed his belief in the value of fair procedures and in constitutional limits on what majorities can legitimately do. He called out his worries about private governments as dangerous impediments to the independence of citizens. And, perhaps most important of all, he believed and he insisted that courts of law had an important role to play in solving the problems that faced him and countless others like him. By the time that the Supreme Court of Pennsylvania agreed with him, the foundations had been laid for the development of American civil society.

ONE

Friendship, Formalities, and Membership in Post-Revolutionary America

It did not take long at all. In 1783, in the immediate wake of the Treaty of Paris, the scent of gunpowder had yet to fade when a controversy of national reach gripped the American public. Officers of the Continental Army, who had just successfully waged war against what was still believed to be the world’s greatest military power, formed the Society of the Cincinnati on the banks of the Hudson River on May 13, 1783. They named their association for the Roman general Lucius Quintus Cincinnatus who, rather than seeking power and glory, had returned to his farm after military triumph. The framers of the Cincinnati, led by General Henry Knox, whose brainchild it was, conceived of it as a “Society of Friends, to endure so long as they shall endure, or any of their eldest male posterity.” By signing a copy of the parchment “Institution,” or constitution, of the Cincinnati, more than a thousand Revolutionary War officers had joined within months of its formation.1

When the public first learned about its institution, critics of the Cincinnati—and they could be found from Massachusetts to South Carolina, even among American diplomats posted in Europe—began to engage in the first explicit discussions of the rights of citizens to form private societies and of the potential dangers that a closed institution of, by, and for the elite might pose for the infant American republic. It is not hard to imagine their concerns: American officers of the Revolution with at least three years’ service (French officers, too, were invited) had chosen to form what could easily be seen as an association intended to create an aristocracy or even a knighthood. Members would gather together on regular, appointed occasions; they would wear an elaborate medal; membership would descend from them to their eldest sons, into perpetuity. It was utterly un-republican. John Adams called it “a deep design to overturn the whole Edifice of our Republican Liberty.” Its most vociferous critic, Judge Aedanus Burke of South Carolina, said that to permit the Cincinnati’s existence “would give a fatal wound to civil liberty thro’ the world.”2

Two of the charges aimed at the Cincinnati have received a great deal of attention, at the time and over the past two centuries: The hereditary aspect of membership led some to believe that the club might result in the creation of an American peerage, even if the organizers had had no such intention. And, second, in a period when hardly any organization but Congress was truly national in scope, people could see the Cincinnati—with its federal structure, with national, state, and, in some places, district-level meetings—as something more than a club of former soldiers. It looked all too much like a self-created and parallel government. For many, it was an organization that simply reeked of political pretensions: as a legislative committee in Massachusetts reported, this “select Society” planned to “convene expressly for the purpose of deliberating upon, judging of, and adopting measures concerning matters, proper only for the cognizance of the legislative and their determination thereon, or of such other bodies as are known in the constitution.” This was, in 1784, a dangerous imperium in imperio, an internal threat to republican government.3

But there was a third line of discussion. The reason that the founders and leading men of the Cincinnati gave for its very creation would generate a remarkable conversation that points the way toward how conceptions of voluntary membership would develop in the immediate aftermath of the American Revolution. The Cincinnati offered one reason that they believed the society ought to exist: to preserve friendships forged in war. The very existence of the Society of the Cincinnati exposes a desire by men in the late eighteenth century to come together in more-or-less organized forums for conversation and fellowship.4

This was an impulse in no way limited to the college man or to the soldier. A century earlier, in the late seventeenth century, English and Scottish thinkers began to develop a set of ideas that would shape Anglo-American views of social life for more than a century. Anthony Ashley Cooper, the third earl of Shaftesbury and a student of John Locke, was part of a group of influential writers who described an innate moral sense that was present in all human beings. This sympathy meant that all people were, by nature, sociable. That concept, especially as delineated in the works of Adam Smith, Dugald Stewart, and Francis Hutcheson, would echo in the political thought of the American Revolutionary generation and for decades to come. Even as they became anxious about the fate of “the social principle” by the mid-nineteenth century, orators and essayists continued to expound upon the “sacred tie of sympathy” that “binds man to his fellow man.” In both the eighteenth and nineteenth centuries, such sensibility was seen as something that, although innate, must be nurtured and improved. And the stakes were high, as fostering sympathetic social bonds was thought to be crucial to holding a society together. The matter was not merely psychological, but intensely political.5

And organized groups were crucial. In a 1709 essay, “Sensus Communis,” Shaftesbury emphasized the value of the club or conversation circle as an intimate community of shared interest and fellow feeling that gave men and women an opportunity to speak freely and to sharpen their wits. They could insulate themselves from the world outside “and grow better reasoners, by reasoning pleasantly, and at our ease,” in these private societies of friends. Shared tastes would bring people together, often just a common interest “to furnish a rational amusement for the length of one Winter evening in a week,” as one club in Annapolis described its goal in 1770. Beginning in the seventeenth century and in still greater numbers in the eighteenth, clubs of this sort spread throughout urban settings in England and British America. Before large numbers of outwardly oriented societies came into being—and they were notably called “projecting” societies by Daniel Defoe, meaning groups designed to offer something to those who were not members—private societies modeled on ideals of Shaftesburian sociability attracted educated men and women to fellowship throughout the English-speaking world. And the gentlemen’s clubs, college fraternities, and coffeehouse gatherings of the colonial period, even if almost wholly founded on play and seeking little more than fellowship, served important discursive roles in the eighteenth century, as shown in the work of David Shields and others who since the late 1990s have applied the ideas of Jürgen Habermas to their studies of colonial and Revolutionary group life.6

But how much influence did such notions of belonging actually have in the years after the American Revolution, and into the nineteenth century, as Americans began to form and join increasingly diverse kinds of voluntary societies? How were their ideas about membership shaped by these older ideals of affectionate harmony? We know that the clubs and societies of Anglo-American civil society, generally seen to hold little political resonance before the Revolution, were transformed by the twin processes of winning independence and of building a nation in the decades that followed. During the Revolution, participants in the correspondence societies and other revolutionary groups met in private and forged strong relationships but acted directly to transform American politics in a way that had not, generally speaking, been the practice in British American associational life. In the Revolution’s wake, many associations continued their direct engagement with the world around them, seeking social and political reform in ways undreamed of in colonial society. The question had to be asked of whether the nation as a whole could be held together through the sorts of sentimental bonds seen in these Shaftesburian clubs, though it seemed desperately unlikely.7

The furor over the Cincinnati helped some Americans arrive at some answers. In a way that mirrored the important distinction drawn by Revolutionary writers between society and government—one natural, the other artificial; one, as Thomas Paine said, “produced by our wants”; the other, “by our wickedness”—so too were critics of the Cincinnati profoundly skeptical of the Society’s claim to be founded in “mutual friendships which have been formed under the pressure of common danger” in a time of war. If friendship was the goal, why then create a national, hereditary order, complete with auxiliary societies and constitutions?8

From the moment that the first eyebrow was raised concerning this veteran’s organization, defenders of the Cincinnati insisted—and most scholars believe there is little reason to doubt them—that the organization was not a conservative, hierarchical reaction to the leveling tendencies of the Revolution, but a product of heartfelt desires to preserve the friendships forged in a long and destructive war. According to one Maryland member, the war produced friendships that “were strengthened by adversity, and finally cemented (as our establishment expresses it) by the blood of the parties.” These were generally “of too endearing a nature to be for ever dissolved by the separation which necessarily followed the discharge of the army,” and, because “no mode so unexceptionable as this could be devised to render them lasting,” the Society of the Cincinnati was formed. In 1787, New York’s Morgan Lewis would similarly call to mind how “a gallant band of patriots, who, for eight years, had lived together in the habits of the strictest friendship,—together borne the numerous hardships incident to the soldiers’ life—together braved the various dangers of the field—together fought, bled, and conquered, saw themselves on the eve of separation, and could not bear the thought that it should be forever.”9

Perhaps the Cincinnati was intended to be a “Society of Friends.” But men such as Thomas Jefferson, who was not a member, and George Washington, who was, gave serious thought to the idea that the very act of organizing might threaten that goal. Nothing corrupted friendship, they believed, like formal association. Jefferson put his finger directly on the issue in a letter he wrote to George Washington in April 1784, and the perceived distinction between association and amity continued to shape attitudes towardvoluntary associations in the decades to come: Friendship was a feature of natural society; formalities and organized collective action were elements of political society. That distinction would become hardened in the crucible of the first postwar national controversy. The result was a growing certainty that natural bonds of affection were so sufficiently distinct from the artificial bonds of any formally organized society—fro...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• Part I: The Concept of Membership in America, 1783–1815
• Part II: Practices and Limits, 1800–1840
• Part III: Consequences: Civil Society in Antebellum America
• Notes
• Index