Cold War Liberalism and the Case of the Missing Regulation

That was not always the case. For the first half of the 20^th century, the dominant vision of early American history, authored by the so-called “progressive historians,” did not include an especially favorable, text-based, or formalist rendering of the Founding.Footnote ³¹ Part of the more critical realist “revolt against formalism” that anchored professional social science at the turn of the century, progressive history featured a much more skeptical, empirical, and materialist methodology emphasizing conflict, consequences, and the actual winners and losers of the public policy battles that determined so much of American history.Footnote ³² Charles Beard’s progressive classic The Economic Interpretation of the Constitution (1913) skewered the secular constitutional theology of earlier interpretations of the Founding as something approaching divinely-inspired benevolence:

Beard’s perspective was decidedly less sanguine. Written in a period when many viewed judges, courts, and constitutionalism as undemocratic obstacles to progressive popular will, Beard more critically investigated the long road to Philadelphia as yet another opportunistic moment for dominant economic interests to secure privileges by writing them into laws. Beard was not alone, rather he was joined by two generations of critical realists who produced some of the most thoroughgoing critiques of law and constitutionalism in American history: The Growth and Decadence of Constitutional Government, Court over Constitution, and Government by Judiciary.Footnote ³⁴ With respect to the Founding, Merrill Jensen was perhaps the last progressive historian especially focused on the concrete and conflicted policy output of early American legislation and regulation.Footnote ³⁵

By the middle of the 20^th century, however, American founding constitutional narratives began an ineluctable turn away from such critical realism. For Daniel Boorstin, writing in 1953, the constitutional institutions bequeathed to us by the founders sprang once again from original “genius,” and the fierce conflicts of the Revolution dissolved beneath a more soothing balm of anti-ideological consensus. “The major issue of the American Revolution,” Boorstin argued, was simply a non-revolutionary disagreement about the nature of “the true constitution.”Footnote ³⁶ The theme of “liberty” also began a new ascendancy in mid-century interpretations of the founding period. Clinton Rossiter’s Seedtime of the Republic: The Origin of the American Tradition of Political Liberty (1953) was a locus classicus, emphasizing “the broad agreement among Revolutionary thinkers over constitutional fundamentals.” At the core of those fundamentals stood liberty—“natural law” and the “rights of man”—the original constitutional baseline for the “ethical, ordered liberty that the American people still cherish as their most precious intellectual possession.”Footnote ³⁷ Edmund Morgan’s 1956 portrayal of The Birth of the Republic similarly featured a more abstracted “search for principles”—shared principles continuous with “a golden age of Anglo-Saxon purity and freedom.” And property joined liberty as fundamentals. For the Americans (as for the English), Morgan harmoniously asserted, “Property was not merely a possession to be hoarded and admired; it was the source of life and liberty…. Liberty rested on property and whatever threatened the security of property threatened liberty.”Footnote ³⁸

The reasons for this mid-century about-face on the general orientation of the American founding are not complicated, and they are now themselves the subject of growing literatures on consensus history as well as Cold War liberalism. In law and constitutionalism, Edward Purcell and Richard Primus have argued that America’s confrontations with totalitarianism (from right-wing Fascism through to left-wing Communism) gave rise to a still-lasting vision of American exceptionalism at the start of Henry Luce’s “American Century.”Footnote ³⁹ Indeed, by mid-century, deeply-rooted American traditions of antiformalism, pragmatism, and critical realism came under blistering attack as not foundational or formal or normatively absolute enough to take on totalitarian fighting faiths. In their place, a growing cult of “American studies” downplayed historical connections with continental European states and policies and meticulously catalogued instead America’s distinctiveness, especially its supposed lack of divisive political ideologies and the “givenness” and “naturalness” of its exceptional constitutional liberty and property traditions.Footnote ⁴⁰

Sam Moyn dubbed it a liberalism turned “against itself” as the new Cold War dispensation repudiated the previous generation’s priorities and commitments. As Moyn put it, “The most important fact about Cold War liberal political theory is how profoundly it broke with the liberalism it inherited.”Footnote ⁴¹ The progressivism, perfectionism, and materialism that fueled earlier social democratic reform was rendered increasingly suspect and even potentially dangerous amid a rising tide of anti-communism. In particular, the idea of an “Emancipatory State”—with expansive democratic and social-welfare aspirations—became anathema.Footnote ⁴² After two generations of arduous work by progressive reformers building a new democratic state upon new public law traditions of citizenship, police power, public utility, social legislation, antimonopoly, and public administration, Cold War liberalism turned back to celebrations of American individualism, voluntarism, anti-statism, and constitutional limitations.Footnote ⁴³ The road from these anti-totalitarian priorities to the revival of various forms of contemporary constitutional formalism was straighter and narrower than most first think.Footnote ⁴⁴

An especially good place to see the powerful beginnings of this broader revision in thinking about American liberalism and constitutionalism is the history of the Founding. In place of a conflicted people deploying robust technologies of self-government to their newly preferred ends, the American founding at mid-century was reinterpreted so as to emphasize underlying agreement about timeless constitutional fundamentals, particularly the centrality of individual liberties and limited government. Consequently, today, orthodox renderings of the tale of the road to the Articles of Confederation, the Constitutional Convention, and the First American Congress still hew closely to an interpretive template emphasizing private rights as well as a congenital weakness or vulnerability in the nascent American state.Footnote ⁴⁵

“Since 1750,” Oscar Handlin noted, “From the pulpit, through the press, and in a flood of pamphlets, the colonists pointed their discussions by way of the immediate issues … at the ultimate issue of rights.”Footnote ⁴⁶ Handlin’s student Bernard Bailyn, who originally charted the extraordinary powers of colonial legislatures in the seventeenth and early eighteenth centuries, highlighted the important shift circa 1760 toward what he dubbed the “Alienation of the State.”Footnote ⁴⁷ In excavating the deep intellectual roots of American revolutionary pamphlets, Bailyn fixated on the overriding influence of “eighteenth-century radical libertarianism.” Thus a “central theme” of the American Revolution was the idea “that power is evil, a necessity perhaps but an evil necessity; that it is infinitely corrupting; and that it must be controlled, limited, restricted in every way compatible with a minimum of civil order.” The road from this understanding of the original revolutionary moment to the constitutional limitations imposed at Philadelphia was short and direct: “Written constitutions; the separation of powers; bill of rights; limitations on executives, on legislatures, and courts; restrictions on the right to coerce and wage war—all express the profound distrust of power that lies at the ideological heart of the American Revolution and that has remained with us as a permanent legacy ever after.”Footnote ⁴⁸ These were the seeds as well of a radical Jeffersonian conception of “minimal government.” As Gordon Wood put it, “The most liberal-minded of the eighteenth century—those in the Revolution who had used terms from English politics and called themselves Whigs in opposition to the conservative and royalist Tories—tended to see society as beneficent and government as malevolent.”Footnote ⁴⁹ Jack Rakove similarly emphasized the “weak” nature of established authority as “the great issue” in this entire interpretive tradition: “This sapping of the status and power of elites finds a parallel in the weakening of the authority of the state itself, in its inability to define and advance transcendent notions of the public good.”Footnote ⁵⁰ Indeed, this overriding myth of an essentially weak 18^th century state prevailed through Bernard Bailyn’s last words on the Revolution and so much more: “The essential spirit of eighteenth-century reform – its idealism, its determination to protect the individual from the power of the state – lived on, and lives on still.”Footnote ⁵¹

In contrast to this long and distinguished tradition emphasizing an original revolutionary rights orientation and hostility to positive governance (perhaps even anti-statism), this article entertains the alternate possibility that American independence was worked out against background assumptions of forceful statecraft and surprisingly interventionist efforts in social and economic policymaking. It thus joins an ongoing revisionist project approaching the Founding as a revolution very much “In Favor of Government.”Footnote ⁵² To date, this revision has mainly followed Max Weber and John Brewer in highlighting central administration and the fiscal-military imperatives of emerging nation-states.Footnote ⁵³ But, as Woodrow Wilson’s Attorney General perhaps anticipated, the other place to look for the earliest lineaments of robust American state power is in the record of the revolutionary legislatures.

Now, the revolutionary state legislatures might strike many as an unusual choice for a preliminary investigation into early American statecraft. After all, unlike the original colonial legislatures that have been extolled for their controlled political economy and assertive public governance in times of necessity,Footnote ⁵⁴ the general verdict on America’s founding-era legislatures has not been nearly as flattering. On the contrary, rather than a solution, the early state legislatures are typically seen as key parts of the problem—one of the central reasons for the “weakness” of the Confederation and a faltering early American state.

“Drifting toward Anarchy” was John Fiske’s original appraisal of the “Critical Period” in American history, featuring a veritable chaos of state reprisals, quarrels, retaliatory measures, failures, financial distress, rag-money, insurrection, and Barbary pirates.Footnote ⁵⁵ Gordon Wood maintained Fiske’s general portrait of the “Critical Period,” emphasizing the “vices of the system” and the “abuses of legislative power.” Here, James Madison rose to special prominence in what Jack Rakove ultimately dubbed a “Madisonian [rather than Machiavellian] Moment.”Footnote ⁵⁶ Indeed, something of the climax of the entire era was reached in Madison’s “remarkable” memorandum on “The Vices of the Political System of the United States”—prelude to Catherine Drinker Bowen’s “Miracle at Philadelphia.”Footnote ⁵⁷ The core of Madison’s memo on the eve of that famous gathering was essentially a screed aimed directly at the state legislatures and the “multiplicity and mutability” of state laws. Without presenting much in terms of empirical evidence or investigation, Madison excoriated the state legislatures and their collective output in the most extreme terms imaginable: “evils,” “malady,” “a nuisance,” “pestilent,” “vicious,” “a snare,” “injustice,” “defect,” “alarming,”—the list of strained adjectives goes on. Madison’s thoroughgoing critique of the founding-era state legislatures condemned them to a status of censure, neglect, and political vilification from which they have never fully recovered.

In conventional accounts of the founding, Madison’s “Vices” memo is sometimes paired with a quotation from another favored source—James Iredell, North Carolina Attorney General and later Associate Justice of the United States Supreme Court. In 1780, Iredell called the output of the North Carolina state legislature “the vilest collection of trash ever formed by a legislative body.” That single quote has played an outsized evidentiary role in accounts of the defects of the “critical period” of confederation—defects that ultimately paved the way for constitutional reform at Philadelphia. Gordon Wood utilized it to such effect in his epic Creation of the American Republic.Footnote ⁵⁸ But the actual provenance of the quote might provide reason for caution if not doubt. Indeed, Iredell’s extreme conclusion about the legislature was not the product of a close study of state statutes at all, rather, it was dicta from a May travel letter home to his wife, Hannah Iredell, during an arduous sojourn away. Iredell’s opinion about the legislature was harsh—exactly like everything else in a letter surely meant to convey to a loved one just how miserable everything was in their absence. Iredell’s letter was a litany of complaints detailing his arrival in Newbern “after an infinite deal of difficulty and trouble.” Iredell complained about the weather, the roads (“almost impassable”), the distance (long), the rivers (“unfordable”), the bridges (“torn up”), the milldams (“broke”), the Circuit (“disagreeable”), expenses (“monstrous”), the circumstances of Continental troops around Charleston (a “melancholy” account), his companion Mr. Williams (“severe inflammation in his eyes, and pain in his head”), and the Doctor’s wife (“one of the fattest women I ever saw”). His previous letter was even more “disagreeable,” noting “that spunging creature Lathberry is shut up in the house with us, and so insolent with his Tory conversation and sly slanders, that we have been obliged to handle him a little roughly, and should have done it much more.” The letter is self-consciously exaggerated in tone and entertaining in content—it should not be mistaken for a judicious assessment of state legislative activity. Indeed, Iredell explicitly wrote that his assessment was a product of “skimming over the laws, so far as a very few minutes would permit me.”Footnote ⁵⁹

Despite the fact that most histories of the founding since Madison’s memo and Iredell’s letter have disparaged the policymaking output of the early American states, there is thus perhaps reason to challenge the empirical bases of (as well as ideological and interpretive reasons for) that common historical judgment. Merrill Jensen was one of the most diligent students of the entire period, and he took direct aim at Fiske’s portrait of “chaos and patriots to the rescue,” wherein “political leaders, full of wisdom learned during the Revolution, sought to save the nation from the results of ignorance and inexperience.” Jensen alternatively endorsed a more realistic, fact-based, and grounded approach to the history of the period, rooted in the primary sources:

And indeed, historians who have stayed closer to the sources when assessing the actual output of early American state legislatures have delivered more nuanced accounts.Footnote ⁶¹ So, it might perhaps be time again to pay more attention to what the very first American legislatures and committees (committees of safety, observation, and inspection, no less) were actually doing as opposed to what the “Big Six” Founders—as Akhil Amar refers to them—were saying. Footnote ⁶² Such a shift in perspective foregrounds a different set of public problems facing the birth of new modern states in an “Age of Democratic Revolution.”Footnote ⁶³ An emphasis on the actual practices of our first independent bodies politic highlights the unprecedented popular demand for public provisioning and governmental administration in a society and economy at war and in constant crisis. New modes of revolutionary and self-governance were pioneered in vital efforts to meet the needs and solve the problems of new and intensely conflicted democratic publics.Footnote ⁶⁴

Some of those substantive priorities were already apparent in the scale and scope of revolutionary state emergency legislation. New Jersey alone, for example, enacted emergency acts to:

1. 1. Prohibit the Exportation of Provisions

2. 2. Prevent the Distilling of Wheat, Rye, and other Grains

3. 3. Restrain the Exportation of Pitch, Tar, and Turpentine

4. 4. Encourage the Making of Salt

5. 5. Erect Salt Works

6. 6. Procure Clothing for Regiments

7. 7. Regulate and Limit the Prices of Sundry Articles of Produce, Manufacture, and Trade

8. 8. Prevent Forestalling, Regrating, and Engrossing

9. 9. Regulate the Quartering of Soldiers

10. 10. Grant a Bounty upon Wood, Flax, and Hemp

11. 11. Empower a Commission to take Possession of the Andover Iron-Works

12. 12. Encourage the Manufacture of Paper

13. 13. Regulate and Limit the Price of Labor

14. 14. Prevent the Withholding from Sale the Necessaries of Life

15. 15. Settle Public Accounts

16. 16. Procure Supplies

17. 17. Prevent Trading with the EnemyFootnote ⁶⁵

On December 11, 1777, the New Jersey legislature went so far as to set specific maximum rates and prices for the following articles of produce, manufacture, and trade: Salt, Bloomary Bar-Iron, Pig Metal, rolling Iron, Open Castings, Raw Hides, Soal Leather, Upper Leather, Men’s Neat-Leather Shoes, Women’s Shoes, Wheat, Rye, Indian Corn, Oats, Buck-Wheat, Wheat-Flour, Hay of first Crop, Best Hay of second Crop, Pork, Beef, Potatoes, Wool, Flax, Cyder-Spirits, Grain Spirits, Butter, and Cheese. It also set a maximum wage level for Farming-Labor, Mechanics, Tradesmen, and Handicraftsmen as not more than double their level in 1775.Footnote ⁶⁶

But while such statutory overviews are suggestive in providing introductory insight into the range of legislative, regulatory, and administrative activities of the first formally constituted state legislatures, even greater light is shed on the original moment of revolutionary legislation and administration by examining the very earliest governmental bodies to emerge out of revolutionary conditions—the Provincial Congresses and the Committees of Safety. Jared Sparks nicely set the stage for the emergence of these first institutions of independent self-governance in his Life of Gouverneur Morris (1831):

With the revolutionary unraveling of the social and political fabric and amid “common suffering and danger,” Gouverneur Morris joined the First Provincial Congress of New York and the Committee of Safety. In Massachusetts, Sparks noted, towns had already commonly formed three different kinds of revolutionary committees—of Correspondence, of Inspection, and of Safety. The first forwarded intelligence, warned of danger, and undertook other measures “of public good,” while the second policed the British non-importation agreement under the Continental Congress’s “Association.” The third—the committee of safety—was even more ambitious. As Sparks described it, it “was a kind of executive body, whose duty it was to watch over the safety of the community, the internal police, and the welfare of society, at a time when law was prostrate, and there was no remedy against disorder and confusion.”Footnote ⁶⁸ America’s earliest governing bodies seem much worth a closer look.

Provincial Congresses

Provincial Congresses (occasionally called “conventions”) were the 1^st independent legislative bodies established in 10 of the 13 colonies after the collapse of British rule, the formal dissolution of colonial assemblies, and/or the flight of royal governors between 1774 and 1776.Footnote ⁶⁹ The immediate catalyst for this extraordinary auto-creation of legislative self-governance was, of course, British Parliamentary reaction to the Boston Tea Party in the form of the so-called Coercive or Intolerable Acts of 1774. Aiming once-and-for-all to assert Parliamentary prerogative over Massachusetts’s internal governance and to forever punish Boston radicals, the Boston Port Act, the Massachusetts Government Act, the Administration of Justice Act, the Quartering Act, and the Quebec Act launched a cascade of legal-political as well as rebellious-violent events that ultimately culminated in war and independence. As the “white tents” of the British military rose on Boston Common and military governor General Thomas Gage replaced Thomas Hutchinson, animosities and tensions that had simmered since before the Stamp Act crisis boiled over into a steady current of coordinated and organized revolutionary action.Footnote ⁷⁰ Most significantly, committees of correspondence renewed their calls for intercolonial resistance and cooperation as well as plans for a more general and “Grand Congress.” Royal governors tried to frustrate such ambitions by proroguing or dissolving many existing legislative assemblies, which only further fueled the development of quasi-legal committees, associations, and, ultimately, nominating conventions. The latter, of course, culminated in the fateful meeting of delegates at the First Continental Congress on September 5, 1774. On October 20, Congress issued its Articles of Association calling for local enforcement of a sweeping boycott of British goods. The new organizational and governmental requirements of non-importation (and ultimately non-consumption and non-exportation), in turn, launched a new round of grassroots institutional innovation in the form of Provincial Congresses as well as Committees of Safety, Inspection, and Observation—the latter on both state and local levels.Footnote ⁷¹

Now, of course, the major legal actions and political events surrounding the American Revolution like the Stamp Act, the Sons of Liberty, the Committees of Correspondence, and the Continental Congress are some of the most written about and well-traversed topics in all of American history.Footnote ⁷² But, somewhat strangely (with some important and more recent exceptionsFootnote ⁷³), the actual output of the Provincial Congresses and especially the revolutionary Committees of Safety has been comparatively neglected. Indeed, the most recent historian of some of the “unrestrained powers of force and coercion” unleashed by revolutionary provisional legislatures and committees has hypothesized a somewhat purposeful omission from “the traditional narrative about rights and liberties.”Footnote ⁷⁴ While reserving judgment about the exact reasons for neglect, it is worth taking a closer look at some of the main legislative and regulatory preoccupations of America’s very first revolutionary governments.

In Massachusetts, the first Provincial Congress was formed at Salem on October 7, 1774—driven from its “ancient seat” in Boston after Governor Gage dissolved the General Court.Footnote ⁷⁵ The Congress built upon several spontaneous “conventions of the people” in the counties of Suffolk, Middlesex, Essex, Hampshire, Plymouth, Bristol, Worcester, Berkshire, and Cumberland where delegates of towns and districts met in private homes, courthouses, and as committees of correspondence in building support for a more general Provincial Assembly.Footnote ⁷⁶ After appointing a committee to encourage “arts and manufactures,” the Suffolk convention, for example, paid “due respect” to the Continental Congress while calling for a more general Massachusetts legislative body: “That the exigencies of our public affairs demand that a provincial congress be called, to concert such measures as may be adopted and vigorously executed by the whole people.”Footnote ⁷⁷ The Middlesex Convention alone consisted of 150 delegates drafted from more local town and district committees—testament to the extraordinary wave of self-governing committee and resistance organization and participation that launched an American revolution.Footnote ⁷⁸ Indeed, the Provincial Congresses themselves were typically much more representative than the colonial assemblies they replaced. South Carolina’s Provincial Congress consisted of 180 representatives—triple the size of its previous legislative incarnation.Footnote ⁷⁹

The Provincial Congresses met irregularly owing to the crisis and eventual wartime conditions. The First Provincial Congress of Massachusetts, for example, convened at Salem only on October 7, at Concord from October 11 to October 14, and at Cambridge from October 17 to October 29 and again on November 23, before dissolving on Saturday, December 10, 1774. With representatives from 12 counties and over 200 towns, the Congress elected John Hancock as President and Benjamin Lincoln as Secretary and immediately began to establish committees to begin the actual work of day-to-day provisional governance. An original “committee on the state of the province” made clear the necessities of the situation, reporting on “the distressed and miserable state of the province” and noting a determination to “concert some adequate remedy for preventing impending ruin, and providing for the public safety.”Footnote ⁸⁰ The range of actions taken by the Congress attested to the broad swath of legislation, regulation, and administration required by the crisis, wartime, and emergency conditions.

In but its first days in session, the First Provincial Congress quickly resolved that constables, sheriffs, and tax collectors should not turn over any provincial moneys in their possession to crown officers and devised measures for the identification and punishment of “rebels against the state”—especially those who took up royal commissions under the Coercive and Intolerable Acts.Footnote ⁸¹ Committees were appointed to investigate the state of the army and to report on what was “necessary to be done for the defence and safety” of the province. And the Congress met with selectmen, overseers of the poor, the committee of correspondence, and the committee of donations from Boston to discuss “means for preserving the town” in the “alarming crisis.” The Congress organized a boycott of East India teas and recommended that every town establish a committee to publicize the names of any locals “who shall sell or consume so extravagant and unnecessary an article of luxury.”Footnote ⁸² And even before it received explicit instructions from the Continental Congress, it approved and ratified non-importation and non-consumption agreements concerning British goods in general and further recommended that inhabitants of this province also boycott importers “who have sordidly preferred their private interests to the salvation of their suffering country.”Footnote ⁸³ On the military front, the Provincial Congress began making arrangements for military exercises and the organization of local militias as well as the provision, preservation, and storage of some £20,837 worth of gunpowder and ordinance (field pieces, pounders, carriages, irons, cannons, mortars, shot, bomb-shells, lead balls, arms, bayonets, and barrels of powder).Footnote ⁸⁴

Beyond military production and preparation, the First Massachusetts Provincial Congress also endorsed the priority of both county conventions and the Continental Congress to improve and encourage so-called “domestic manufactures” through internal policymaking. Drawing on the rich legal traditions and vocabularies that would ultimately underwrite 19^th century American state police powers, the Provincial Congress argued that “every state ought to regulate their internal policy in such a manner as to furnish themselves, within their own body, with every necessary article for subsistence and defence … to encourage agriculture, manufactures, and economy, so as to render this state as independent of every state as the nature of our country will admit.”Footnote ⁸⁵ In consequence, the Congress passed resolutions “productive of the greatest good” that recommended improvement in the breeding of sheep and the raising of hemp and flax, preferable use of domestic wools, reasonable prices for such goods, and increases in the making of nails, steel, tin-plate, saltpetre, salt, and glass. Likewise, the Congress endorsed the “public utility” of encouraging horn smiths, wool-combers, textile manufactures, and the raising and curing of madder, and they recommended the establishment of societies for “introducing and establishingFootnote ⁸⁶ such arts and manufactures as may be useful to this people.”Footnote ⁸⁷ Before dissolving and recommending the election of delegates for a Second Provincial Congress in Cambridge in February 1775, the First Congress also entertained a brief discussion of slavery, noting the propriety while attempting to “preserve ourselves from slavery” to also “take into consideration the state and circumstances of the negro slaves in this province.”Footnote ⁸⁸

While the output of the very 1^st Provincial Congress of Massachusetts is emblematic of some of the first priorities of revolutionary legislative statecraft, the tasks of government only increased after 1775. South Carolina’s First Provincial Congress provides another alternative window into the growing demand for mutual protection and public provision amid heightened conflict with Great Britain. South Carolina’s Provincial Congress came into being on January 11, 1775, as the work product of a predecessor “General Meeting” and “General Committee”—themselves created as shadow governments after the Coercive and Intolerable Acts, heeding the Continental Congress’s October 1774 call for further Intercontinental Association in enforcing the anti-British boycott. In South Carolina, the incipient worry about loyalty and scofflaws and opposing commissioners detectable in Massachusetts’s first provincial session became a preeminent concern, especially after the “shots heard round the world” on April 19, 1775, in Lexington and Concord resounded in Charleston. On June 1, 1775, South Carolina convened 172 members in the Statehouse Assembly Room, who immediately began working on strengthening the bonds of consociation and policing dissent.

The South Carolina’s Provincial Congress unanimously resolved to form a “General Association” of subscribers committed to the following engrossed, printed, and circulated terms:Footnote ⁸⁹

It is worth highlighting a couple of central elements in this revolutionary associative decree. First, it flags the overarching concern with resisting heteronomous and alien governing impositions that violated traditional expectations of local self-rule—i.e., the “arbitrary impositions from a wicked and despotic ministry.”Footnote ⁹¹ Second, South Carolina emphasized the actual, physical deprivation and socio-economic precarity on the ground—“an injured country” and “present distressed circumstances” that drove an “oppressed people” to arms. In contrast to Whig-intellectual interpretations emphasizing what Gordon Wood dubbed “conspiracy and the paranoid style,” South Carolina underscored the social fact of a necessitous people.Footnote ⁹² Finally, the Association reflected the overarching need for the policing of loyalty in the securing of “freedom and safety.” Subscription to the Association was mandatory, and anyone who refused to sign or adhere to these principles was branded an enemy of the people—“inimical to the liberty of the colonies.” As the members of the Provincial Congress themselves signed the Association, they simultaneously endorsed “the most effectual methods” for procuring subscription and signing more generally by the other inhabitants of represented districts and parishes. By June 7, a committee was formed “to receive the signatures of all the inhabitants of Charles-town” into the Association and further committees of “Intelligence and Observation” were established to be “watchful and diligent.”Footnote ⁹³ Anyone who refused to sign the Association was subject to an appearance before the “General Committee” empowered to “make such order as they shall think consistent with sound policy.” Any person violating or refusing “obedience to the authority of the Provincial Congress” was declared and advertised as an “enemy to the Liberties of America, and an object for the resentment of the public.”Footnote ⁹⁴ In the context of this overarching concern with loyalty and internal enemies, South Carolina’s Provisional Congress mustered two regiments of foot (750 men each) and one regiment of rangers (450 privates)—“officered, raised, paid, and disciplined, and put under the direction of the Congress.”Footnote ⁹⁵

While military organization and the policing of internal dissent remained high priorities of South Carolina’s First Provincial Congress, domestic necessities and socio-economic provisioning also remained important concerns. Indeed, the day after mustering regiments, South Carolina also established nine members as official Commissioners of Rice, responsible for receiving and purchasing “good and merchantable rice” with certificates at the rate of fifty-five shillings per 100 pounds. Such rice (2700 barrels) was then to be placed in public granaries at Charleston (200 barrels), Jacksonburg (1000 barrels), Pocotaligo (200 barrels), Beaufort (100 barrels), Dorchester (500 barrels), Watboo (500 barrels), and Georgetown (200 barrels). The Rice Commissioners were then charged with disposing of such rice “in such way or manner as to them shall seem most conducive to the public good.” The Congress made similar arrangements for the purchase and provision of flour, while also instituting a ban on the export of corn.Footnote ⁹⁶ In addition to commissioners of rice and flour, the Provincial Congress also ordered the appointment of another group of persons to purchase wool, cotton, and utensils so as to set up a “complete manufactory of cloth”—a manufactory that would especially employ “the poor.”Footnote ⁹⁷ Such regulations of internal policy and economic police also revived old common law concerns with forestalling, engrossing, and regrating. Indeed, when the Congress was informed of the “buying up” of “Indian corn, with a view of taking advantage of the times,” they declared “that such engrossing is intolerable, and ought not to be suffered in this time of scarcity.” With the subsequent sale of such corn “at an advanced price,” the Congress held that “proper information of engrossers ought to be immediately laid before the Congress, or the General Committee.”Footnote ⁹⁸ Of course, South Carolina’s concerns about internal police and economy also reached its enslaved population (as the Congress voiced concerns about potential slave insurrection) as well as native Americans (in attempts to press the Catawba tribe into military service).Footnote ⁹⁹

As should be clear, given their irregular sessions, Provincial Congresses spent most of their time setting up a plethora of substantive committees and a wide variety of commissioners, both internal and external to the legislative body, to further carry on the conduct of governance. South Carolina’s establishment of a select committee to “direct the printing of money” followed by the appointment of three “proper persons” as “Commissioners of the Treasury” for “answering the demands of the public service” was typical.Footnote ¹⁰⁰ Indeed, before adjourning South Carolina’s First Congress authorized the continuation of “the General Committee, the Secret Committee, the Committee of Observation in Charles-Town, and Committee of Intelligence” notwithstanding “the expiration of the present Congress.”Footnote ¹⁰¹ The record of executive action by these committees is astonishing in both variety and extent, frequently dwarfing the work of the more famous revolutionary committees of correspondence. Indeed, amid this whole universe of revolutionary committee action, the practices of the various states as well as local “Committees of Safety” are especially instructive about the actual practice of early American revolutionary governance.

Committees of Safety

When discussing the role of committees in American revolutionary governance, conventional histories have long focused attention on “Committees of Correspondence”—a commonplace in grammar school accounts of the coming of Independence. In consequence, many Americans grow up thinking about the Revolution as something akin to a literary event, wherein luminaries of American letters debated finer points of ancient political philosophy and English constitutional history. The dangers of such a blinkered perspective were captured long ago by Evangeline Walker Andrews who cautioned that the founders “were engaged in real rebellion and revolution, characterized by extremes of thought and action that always accompany such movements, and not in the kind of parlour warfare, described in many of our text books, in which highly cultivated and periwigged American gentlemen of unquestioned taste and morality” debated abstract “principles of democratic government.”Footnote ¹⁰² Without taking anything away from the crucial role of correspondence committees (yet alone political and constitutional ideas) in the American Revolution, another set of revolutionary committees shines a different light on the “real rebellion” and practical “extremes of thought and action.”

Those committees were the Committees of Safety, sometimes also known as Committees of Inspection, Committees of Observation, and Commissions for Detecting and Defeating Conspiracies. “American dictators,” Joshua Canale provocatively dubbed such committees at the state level in New York, Virginia, and New Jersey as they “assisted the war effort, regulated the economy, and policed internal dissent.” Policing dissent included “monitoring inhabitants’ movement, confiscating mail, stifling free speech, extending oaths, interrogating the accused, summoning the suspicious, apprehending potential subversives, deporting residents, paroling neighbors, and even jailing those deemed enemies.”Footnote ¹⁰³ In New York, Howard Pashman has delved further into the committees that emerged at town and county levels, known alternatively as “committees of observation,” “committees of safety,” or just “Committee of Albany” (or some other such locality). Such committees “gathered war materiel, regulated local economies, [and] kept the roads clear.” But more significantly, they also confiscated, expropriated, and redistributed private property. As Pashman put it, “‘Commissioners of Sequestration’ provided material relief to a society suffering shortages and inflation … by seizing the personal property of British sympathizers, auctioning it off, leasing the vacant farms, and paying anyone who helped to redistribute goods.” Pashman’s work on the committees supplements Daniel Hulsebosch’s observations about anti-loyalist statutes in New York that were “so numerous, so encompassing, and so detailed that they reveal a systematic attempt to stigmatize the loyalists, to take their property, to tax what remained, and to force them to settle their debts cheaply.”Footnote ¹⁰⁴

Scholars have traced historical precedents for such committees back to the English Civil War as well as to even earlier incarnations in local colonial self-defense and self-protection.Footnote ¹⁰⁵ But Committees of Safety surged in importance during the American Revolution (as they would again take center stage in the French Revolution)—quickly filling the governmental power vacuum left by closed courts, dissolved legislatures, and fleeing governors. Local committees of safety were frequently spontaneously organized out of local town meetings or various committees of correspondence. But state Committees of Safety were often formally constituted by Provincial Congresses. One of the first things the Massachusetts Provincial Congress did was constitute a committee to consider what was “necessary to be done for the defence and safety of the province.” On October 26, 1774, taking note of the war-like preparations of British troops endangering “the lives, liberties and properties of its oppressed citizens,” that committee in turn recommended the establishment of a nine-member Committee of Safety with extraordinarily broad powers for the “safety and defence” of the province and for the protection of its lives, liberties, and properties.Footnote ¹⁰⁶ That Committee would continue in office until further order of the Provincial Congress, with the following powers and obligations:

1. 1. To “most carefully and diligently inspect and observe” all persons aiming at “the destruction, invasion, detriment or annoyance” of the province.

2. 2. To “alarm, muster, and cause to be assembled” the militia of the province as necessary for the “safety and defence” of the inhabitants of the province.

3. 3. To “call or order” all officers and soldiers of the militia who were under “the strictest obedience thereto.

4. 4. To “provision” the militia with “cannon and carriages” and “small arms,” “ammunition and ordinance stores as they shall judge necessary.”

5. 5. To provide “an allowance from this province” for mustered officers and soldiers, “adequate to their services.”Footnote ¹⁰⁷

On June 14, 1775, South Carolina’s Provincial Congress followed suit, establishing a thirteen-member state Council of Safety with similar powers and discretion: to appoint and suspend officers in the army, to order a general court-martial, and to direct, regulate, and maintain the army and all military establishments, notably, “subject always to the control of the Congress.”Footnote ¹⁰⁸

And without question, the first task of state Committees of Safety was preparation for war—the mustering of the men, militia, and materiel necessary to confront the British army. The Massachusetts Committee of Safety at first coordinated with a separate Committee of Supplies to provision the army. And early meetings at various private houses were preoccupied with food supplies (355 barrels of pork, 700 barrels of flour, 20 tierces of rice, and 300 bushels of peas) and tools (spades, iron shovels, pick-axes, wheelbarrows, iron pots, mess bowls, sieves, tin cases, drawing knives, fuses, etc). Such provisioning required further inspections and observations of stores, commissaries, and medicine chests—as a veritable public economy was mobilized under the Committee’s direction for conflict.Footnote ¹⁰⁹ The procurement of arms and ammunition came immediately thereafter, as meetings meticulously noted the gathering of cannon, mortars, cannon balls and shells, howitzers, pounders, brimstone, powder, grape shot, and province arms. The Committee also took note of the procurement of 1500 yards of Russia linen, 2 barrels of Lisbon oil, 6 casks of Malaga wine, and 9 casks of Lisbon wine.Footnote ¹¹⁰ To pay for such supplies, the Committee made drafts on the receiver general and also enforced the Provincial Congress’s order that constables and local officers turn over tax receipts to the province. The Committee also ordered and oversaw the necessary watches in towns and at arsenals and magazines.Footnote ¹¹¹ Finally, on April 20, 1775—one day after Lexington and Concord—the Committee decried “the barbarous murders committed on our innocent brethren” by the “butchering hand of an inhuman soldiery” and turned constant and close attention to actually raising an army of officers and soldiers. The Committee urgently drafted forms of enlistment for fielding some “eight thousand effective men.”Footnote ¹¹²

Lexington and Concord were also the spark for South Carolina’s “General Committee” to reconvene the Provincial Congress, which, in turn, created the Council of Safety. Like their Massachusetts counterpart, the South Carolina Council immediately turned attention to provisioning and mustering. Indeed, their earliest papers and reports are consumed with similar listings of the procurement of beef, pork, wheat flour, rice, and salt; the securing of artillery, ammunition, and arms (cannon, pounders, muskets, powder, etc.), and the detailed raising of regiments of provincial troops.Footnote ¹¹³ But early on, South Carolina’s Council also showed keen interest in the more general policing of loyalty and opinion. On July 18, 1775, the Council of Safety received a report from the Committee for St. Paul’s Parish of a “proceeding and sentence” against one Charles Webb for “Malicious Expressions” against the Lieutenant Governor and the Committees of the Province. According to affidavits, Webb declared in “public company” in a public tavern on the very day of British hostilities against Boston that “He would go to England take a Commission & come Against the Americans.” Later that same day, he was accused of calling the Lieutenant Governor “A Damd Fool for not Hoisting the King’s Standard.” In the context of a further dispute over a past due account where a Committee summons was invoked to assist in collection, Webb attacked “The Committee” directly as a “Sett of Mechanical, Ignorant Rascals … Butchers, Taylers & Cobblers.” He further hoped that “the men of War” would take the delegates “Prisoners & carry them to England, There to be Treated as Rebels,” noting “How Pretty the Foolish Rascals of Property would Look when their Lands & Negroes comes to be forfeited to the King.” In a final attack, Webb suggested that “It was a Pity there was not a Gallows in charlestown to hang all the Americans in a String, & as for the Committee They were a Lousey Sett. Blackgards, such as Butchers, & Taylers.” In consequence, Melcher Garner, Chairman of the St. Paul’s Parish Committee, ordered Webb “Guilty of the Accusation,” whereby “Wee Therefore Look on him as an Enemy to This Province & America in General And an Object of the Resentment of the Public.”Footnote ¹¹⁴

While detailed descriptions of the actual enforcement of loyalty oaths and the policing of dissent by Committees of Safety are more rare in the extant primary sources, the account of one Janet Schaw in her Journal of a Lady of Quality has been seized upon by historians for its more granular detail.Footnote ¹¹⁵ Like so many of its counterparts, the Wilmington, North Carolina, Committee of Safety in March 1775 produced an oath of allegiance in accord with the Continental Association (akin to the South Carolina oath quoted earlier). They also voted that its members move quickly and en masse to canvass householder signatures so that “enemies of their country may be set forth to public view and treated with the contempt they merit.”Footnote ¹¹⁶ The eleven merchants and planters who refused to sign were swiftly boycotted, and things escalated from there. In her journal, Janet Schaw described walking to Wilmington in the midst of the chaos that ensued. Entry to town was “closed up by a detachment of soldiers,” but she was allowed to pass. Once in town, she noticed several acquaintances—no doubt “of quality” as well—but whom she now recognized “were prisoners.” “Every avenue of the town was shut up,” she recalled, and “in all human probability some scene would be acted very unfit for me to witness … I became unable to move and absolutely petrified with horror.”Footnote ¹¹⁷ According to the royal governor, a large band of local soldiers and militia had actually threatened resistors with “military execution.” But Schaw recounted that “the prisoners stood firm to their resolution of not signing the Test, till past two in the morning, tho’ every threatening was used to make them comply.” At last, “They were suffered to retire on their parole to appear next morning.” By August 1775, the royal governor reported the endgame, wherein “the Scotch merchants at Wilmington who so long maintained their loyalty have lately … been compelled ostensibly to join in sedition by appearing under arms at the musters appointed by the committees.Footnote ¹¹⁸

From socio-economic provisioning and domestic necessities to military mustering, property confiscation, and the policing of dissent, the record of America’s first independent governing bodies—Provincial Congresses and Committees of Safety—is one of surprising power and force.