The First American Bill of Rights

On 27 Oct 1774 the Philadelphia printers William and Thomas Bradford issued a book on behalf of the Continental Congress, which had broken up the previous day.

It was titled:

Extracts from the Votes and Proceedings of the American Continental Congress, held at Philadelphia, on the Fifth of September, 1774. Containing, the Bill of Rights, a List of Grievances, Occasional Resolves, the Association, an Address to the People of Great-Britain, and a Memorial to the Inhabitants of the British American colonies.

The September date was when that congress convened.

The “Bill of Rights” in that booklet has become known as just one part of the Declaration and Resolves of the First Continental Congress. Americans of 1774 used the “Bill of Rights” term, however. On 2 December the Massachusetts Provincial Congress voted that “the American bill of rights therein contained, appears to be formed with the greatest ability and judgment.”

Here then is the first Bill of Rights adopted by representatives of almost all the colonies that would become independent:

That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English Constitution, and the several Charters or Compacts, have the following Rights:

Resolved, N. C. D. [Nemine Contradicente, or with no dissenting votes] 1. That they are entitled to life, liberty, and property, and they have never ceded to any sovereign power whatever a right to dispose of either without their consent.

Resolved, N. C. D. 2. That our ancestors, who first settled these Colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects, within the Realm of England.

Resolved, N. C. D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.

Resolved, 4. That the foundation of English Liberty, and of all free Government, is a right in the people to participate in their Legislative Council: and as the English Colonists are not represented, and from their local and other circumstances cannot be properly represented in the British Parliament, they are entitled to a free and exclusive power of legislation in their several Provincial Legislatures, where their right of Representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their Sovereign, in such manner as has been heretofore used and accustomed: But from the necessity of the case, and a regard to the mutual interest of both Countries, we cheerfully consent to the operation of such Acts of the British Parliament, as are, bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole Empire to the mother country, and the commercial benefits of its respective members, excluding every idea of Taxation, internal or external, for raising a revenue on the subjects in America, without their consent.

Resolved, N. C. D. 5. That the respective Colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.

Resolved, 6. That they are entitled to the benefit of such of the English statutes as existed at the time of their Colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.

Resolved, N. C. D. 7. That these, his Majesty’s Colonies, are likewise entitled to all the immunities and privileges granted and confirmed to them by Royal Charters, or secured by their several codes of Provincial Laws.

Resolved, N. C. D. 8. That they have a right peaceably to assemble, consider of their grievances, and Petition the King; and that all prosecutions, prohibitory Proclamations, and commitments for the same, are illegal.

Resolved, N. C. D. 9. That the keeping a Standing Army in these Colonies, in times of peace, without the consent of the Legislature of that Colony, in which such Army is kept, is against law.

Resolved, N. C. D. 10. It is indispensably necessary to good Government, and rendered essential by the English Constitution, that the constituent branches of the Legislature be independent of each other; that, therefore, the exercise of Legislative power in several Colonies, by a Council appointed, during pleasure, by the Crown, is unconstitutional, dangerous, and destructive to the freedom of American Legislation.

All and each of which the aforesaid Deputies, in behalf of themselves and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged by any power whatever, without their own consent, by their Representatives in their several Provincial Legislatures.

Joseph Galloway later told Parliament that because voting was done by colony, those unanimous “N.C.D.” votes didn’t mean every delegate at the Congress agreed—only that the majority of every delegation agreed.

The Extracts book was widely reprinted in North America and Britain. But when the Second Continental Congress voted for independence, these resolves based on a colonial relationship to Great Britain were no longer operative and the states started from scratch.

Nonetheless, they are an interesting snapshot of what American Patriots of late 1774 saw as fundamental rights: elected legislatures controlling taxation, rule of law, trial by jury, right of assembly, and no standing armies sent into their communities without their consent.

“Lurks about the wharves of this city”

Page 3 of William and Thomas Bradford’s Pennsylvania Journal for 13 Oct 1773 included a notice of a meeting of the American Philosophical Society and a proclamation from Gov. John Penn that the Crown had approved two bills the colonial assembly had passed back in March 1772 (a divorce and a naturalization).

In between those items was this announcement:

WHEREAS the infamous EBENEZER RICHARDSON, convicted of PERJURY and MURDER, has, at the instance of his special friend, Charles Paxton, been sent to this city as a pensioner to the —honorable Commissioners at Boston; and in consideration of his many special Services, has by them been rewarded with a quarterly payment, out of the money levied on the Americans, by an Act of Parliament, without their consent:

And whereas the said RICHARDSON, rioting in the spoils of his country, lurks about the wharves of this city, seeking an opportunity to distress the Trade of Philadelphia, and enslave America: And, in order more effectually to answer his vile purpose, has intimately connected himself with a certain T———, a Tide-Waiter here, who publicly declared “he would not only associate with the VILLAIN, EBENEZER, but with the DEVIL himself, if so ordered by the COMMISSIONERS,”

Now it is expected, that all Lovers of Liberty, in this Province, will make diligent search after the said RICHARDSON, and having found this Bird of Darkness, will produce him, tarred and feathered, at the Coffee-House, there to expiate his sins against his country, by a public recantation.

TAR AND FEATHERS.

N.B. The above RICHARDSON appears to be a man of 40 years of age, is about 5 feet 4 or 5 inches high, pretty thick and broad a-cross the shoulders, has a very ill countenance, and down look, [Cain’s Phyz,] mostly wears a flopped hat, a piss burnt cut wig, and a blue surtout coat, with metal buttons.

That’s quite a display of rhetoric. It makes something sinister from Richardson’s job in the Customs service: he “lurks about the wharves,” aims to “distress the Trade,” receives “a quarterly payment” (i.e., his salary). The item links him to “the DEVIL,” “Cain,” and a “Bird of Darkness.” It also contains the only physical description of the man that I’ve seen, not at all flattering. 

This article appears to have been written in Philadelphia by someone not fully familiar with Richardson’s long history in Massachusetts, picking up cues from Boston newspapers. The man was never “convicted of PERJURY,” to my knowledge. Bostonians called him a perjurer, including at the start of the riot at his house, because he’d deceived the public about his child with Kezia Hincher for several crucial months, and because painting him as a habitual liar let them cast doubt on his reports about smuggling and other activity.

The invocation of “TAR AND FEATHERS” is also striking because that public punishment hadn’t shown up in Philadelphia yet. Indeed, many Americans, even Whigs, viewed those incidents as New Englanders going too far. But the next month a broadside warning river pilots against bringing tea into Philadelphia would be issued by “THE COMMITTEE FOR TARRING AND FEATHERING.” (Or “Committee of Taring and Feathering,” as the next paragraph put it, showing the locals behind this threat were still working out details.)

Lastly, this newspaper notice overtly confronts the royal Customs service. It names one of the agency heads in Boston, verges on calling those men “[dis]honorable,” and refers to a local tide waiter by an initial everyone on the Philadelphia waterfront would recognize. That last seems like a clear threat.

TOMORROW: Results.

“He was finishing a grave, in the Granary yard…”

As I recounted yesterday, Josiah Carter died in late 1774. At the time he was sexton of Boston’s oldest Congregationalist meetinghouse, nicknamed “the Old Brick.”

The most detailed and lively portrait of Carter appeared decades later in Dealings with the Dead, by a Sexton of the Old School (1856). The author was not in fact a sexton but a wealthy Harvard graduate, antiquarian, and anti-Abolitionist named Lucius Manlius Sargent. Since he was born in 1786, Sargent never knew Josiah Carter, so his information is at least second-hand and therefore uncertain.

“JOSIAH CARTER died, at the close of December, 1774,” Sargent wrote. “For good Josiah many wept, I fancy; But none more fluently than Dr. Chauncy.” That would be the Rev. Dr. Charles Chauncy, minister of the First Meetinghouse.

Sargent then suggested Carter died not only as a sexton but while performing the job of a sexton:

Josiah Carter was sexton of the Old Brick. He died, in the prime of life—fifty only—a martyr to his profession conscientious to a fault—standing all alone in the cold vault, after the last mourner had retired, and knocking gently upon the coffin lid, seeking for some little sign of animation, and begging the corpse, for Heaven’s sake, if it were alive, to say so, in good English.

Carter was one of your real integer vitae [irreproachable in life] men. It is said of him, that he never actually lost his self-government, but once, in his life.

He was finishing a grave, in the Granary yard, and had come out of the pit, and was looking at his work, when a young, surgical sprig came up, and, with something of a mysterious air, shadowed forth a proposition, the substance of which was, that Carter should sell him the corpse—cover it lightly—and aid in removing it, by night.

In an instant, Carter jerked the little chirurgeon into the grave—it was a deep one—and began to fill up, with all his might. The screams of the little fellow drew quite a number to the spot, and he was speedily rescued.

When interrogated, years afterwards, as to his real intentions, at the time, Carter always became solemnized; and said he considered the preservation of that young doctor—a particular Providence.

Despite the questions of reliability, this anecdote is too good not to share.

As for Carter’s father-in-law Thomas Bradford, I quoted how he had retired from the town watch in 1773, unable to walk. In asking the selectmen for a pension, Bradford said he had only “a few Days more to Live.”

In fact, Bradford survived through the siege of Boston. On 8 June 1778 he was admitted into the almshouse. On 13 September he died. The Continental Journal reported that he died “in the 83d Year of his Age.”

(It looks like, due to a smudged digit, this got into Ogden Codman’s Index of Obituaries in Boston Newspapers, 1704-1800 as the death of a man aged 23.)

Watchmen in the Family

Josiah Carter was born on 31 Aug 1726, one of the nine children of Josiah and Lydia (Ambrose) Carter arriving between 1724 and 1738. He was baptized the next day in Boston’s First Meetinghouse, nicknamed “the Old Brick.”

Josiah’s father might have been the Josiah Carter who advertised psalm-singing lessons at his house on Union Street in the late 1740s.

It’s also possible that Josiah’s mother died and his father married Lydia Thayer in 1741 and had five more children between 1742 and 1749. There was certainly a Josiah and Lydia Carter active in that decade.

On 23 Apr 1763, the Rev. Andrew Eliot of the New North Meetinghouse married Josiah, Jr., to Mary Bradford. She was probably a daughter of Thomas Bradford, born in 1729. (There was another Mary Bradford born to other parents the year before, so I can’t be completely certain, but I’m going to proceed on that assumption.)

Josiah and Mary’s first daughter, also named Mary, was baptized in the First Meetinghouse on 15 Apr 1764. In regular order they had:

• Lucy (1765).
• Thomas Bradford (1767), named after his maternal grandfather.
• Josiah (1769), possibly named in honor of his paternal grandfather; his father stopped being designated “Jr.” at this time.
• John (1771).

Thomas Bradford had worked as one of Boston’s watchmen since 1734, patrolling the streets at night. The arrival of four British regiments in late 1768 complicated that job. Army officers resented having to answer to these working-class civilians, and there were several brawls between them and the watchmen.

Boston’s selectmen responded by beefing up law enforcement with new watches, including a “New South Watch” in October 1769. Bradford was one of the veterans assigned to that squad. In fact, the town made him acting “Constable of the South Watch”; I quoted his commission from the selectmen back here.

After the Massacre and the removal of the troops, the selectmen cut back on the watches in late 1770. Then, pressed by the public in town meeting, they reinstated a “South Watch near the Lamb Tavern” in early 1771 and put Bradford in charge.

Back in 1765, Josiah Carter had joined his father-in-law among the watchmen. He became part of Constable Bradford’s squad in 1771. The next year, the town appointed a fourth man to that watch; usually there were only three, but maybe they needed more manpower to cover all the nights. In November 1772, the selectmen replaced Bradford as Constable. It’s possible he hadn’t been up to the job for a while.

On 16 March 1773, Bradford later recounted, “i was carred Home from the Watch taken with a pain in my right Legg i Could not put it to ye. Ground.“ At the end of April, his daughters were still dressing his leg, and “i Have ben Con find for about a month.”

At age seventy-five, Bradford told the selectmen, he thought he had “but a few Days more to Live and now I intend to retier and to Take my Natrel Rest.” He asked for a small pension, enough for “a Littel fier & bread,” since he had no other income.

Josiah Carter’s name stopped appearing on surviving records of the Boston watch after March 1773, just as his father-in-law retired. Perhaps that was when he left town employ and became sexton at the First Meetinghouse, where he and his children had been baptized. That job involved looking after the church building and digging graves for its congregants.

The next we hear of Carter is in the 2 Jan 1775 Boston Evening-Post’s death notices:

Mr. Josiah Carter, aged 50. Sexton of the Old Brick, or first Church, in this Town.

Printer John Boyle recorded that Carter had died on 28 December. He was in fact only forty-eight years old.

TOMORROW: Josiah Carter and the young doctor.

Lanterns, Laws, and Legend

As I quoted back here, on 1 Nov 1769 Boston town clerk William Cooper wrote out instructions on behalf of the selectmen to Thomas Bradford, temporarily promoted to Constable of the South Watch. Among other things, the letter told Bradford:

You are to take up all Negroes Indian and Molatto Slaves that may be absent from their masters House after nine o’Clock at Night and passing the Streets unless they are carrying Lanthorns with light Candles and can give a good and satisfactory Account of their Business that such offenders may be proceeded with according to Law.

As I noted before, this amounted to license to stop every black or Native American person the watchmen met on the street at night since there was no way to tell by sight if they were slaves.

At the time, Boston was occupied by British regiments. An army captain named John Willson had reportedly asked in a tavern why the town’s enslaved population had never risen up, which locals took (sincerely or not) as instigation to revolt. The result was that discriminatory addition to the watchmen’s instructions, probably modeled on a measure in effect in New York since 1713.

Almost a century after Cooper’s letter, Edward H. Savage published a history of the Boston police force. It seems to have appeared under different titles, including A Chronological History of the Boston Watch and Police: From 1631 to 1865. Using racist language and outrageous dialect, Savage spun an amusing story off that regulation from 1769:

It was said soon after the order was given, “an old darkie was picked up prowling about in total darkness.” Next morning, when asked by the magistrate if guilty, he replied “No, sa, I has de lantern,” holding up before the astonished court, an old one, innocent of oil or candle. He was discharged, and the law amended, so as to require “a lantern with a candle.” Old Tony was soon up again on the same complaint, and again entered a plea “not guilty,” and again drawing forth the old lantern with a candle; but the wick had not been discolored by a flame. The defendant was discharged with a reprimand, and the law was made to read, “a lantern with a lighted candle.” Old Tony was not caught again, having been heard to remark, “Massa got too much light on de subjec.”

Marietta Lois Stow repeated the same anecdote about “old Caesar” and his empty lantern in Probate Chaff: Or, Beautiful Probate (1879).

I’ve seen other racist jokes like this from nineteenth-century Massachusetts, looking back on pre-Revolutionary slavery times. They usually come with a thick coating of dialect and white supremacy, but half the time the story is about a black man as clever trickster.

There’s a problem with relying on this anecdote as history, however. As the quotation above shows, the selectmen had required “Lanthorns with light Candles” all along. So it’s just a joke.

In a new book titled Dark Matters: On the Surveillance of Blackness, Simone Browne discusses the series of New York laws requiring blacks to carry lanterns after dark through 1784 as a presage of modern surveillance of non-white communities. That book calls those “lantern laws,” seemingly a generic term. It’s true that in 1998 Edwin G. Burrows and Mike Wallace’s Gotham: A History of New York City to 1898 referred to that city’s 1713 ordinance as a “new lantern law.” However, Google Books uncovers the phrase “lantern law” earlier only in turn-of-the-20th-century discussions of bicycling.

“Behaving with discretion & Calmness”

On 1 Nov 1769, Boston’s selectmen appointed Thomas Bradford a temporary Constable of the Watch for the south part of town.

On their authority, town clerk William Cooper issued Bradford these instructions:

1st. That you with the Watchmen under you attend at sd. Watch House at the Hours of 9 oClock every Night from the 20th. of Septr. to the 20th. of March and continue till clear day light, and at the Hours of 10 0Clock from the 20th. of March to the 20th. of September, that you & each of you continue upon Duty untill Sunrise; & if any of your Division should misbehave you must inform the Select men of it.

2d. That you keep a fair Journal of your doings every Night, how you find the State of the Town, and who of the Watchmen are on Duty, and Report to the Selectmen every Wednesday.

3d. That two at least of your Division taking their Staves with them walk the Rounds within your Ward, twice at least every Night, or oftner if necessary, setting out from the Watch House at such Times in the Night as you shall judge best, varying the Time according to your discretion.

4th. In going the Rounds Care must be taken that the Watchmen are not Noisy but behave themselves with strict decorum, that they frequently give the Time of the Night & what the Weather is with a distinct but moderate Voice, excepting at Times when it is necessary to pass in Silence in order to detect and secure Persons that are out on unlawful Actions.

5th. You & your Division must endeavour to suppress all Routs Riots & other Disorders that may be committed in the Night and secure such Person as may be guilty; that proper steps may be taken the next Morning for a prosecution as the Law directs, we absolutely forbid your taking private satisfaction, or any bribe that may be offer’d you to let such go or to conceal their offence from the Selectmen.

6thly. You are to take up all Negroes Indian and Molatto Slaves that may be absent from their masters House after nine oClock at Night and passing the Streets unless they are carrying Lanthorns with light Candles and can give a good and satisfactory Account of their Business that such offenders may be proceeded with according to Law.

Of course, since it would be impossible to determine if someone was enslaved just by looking at him, that meant stopping and questioning every person of color.

But in doing so, Bradford and his men were not supposed to swear or be impolite.

7thly. The Selectmen expect that you execute your office with Resolution & Firmness not using any affronting langage but behaving with discretion & Calmness, that it may appear you do not abuse even Offenders & they recommend to you and your Division that you behave with Sobriety Temperance Vigilence and Fidelity and agreeable to the Laws; Your Office requires a Conduct; the Security of the Town demands it, & you may be assured that your continuance in the place to which you are appointed altogether depends upon it

Bradford received a permanent appointment to this post in March 1771.

(The cartoon above, from 1784, depicts British politician Charles Fox as a London watchman. The lantern, staff, and long coat appear to have been emblematic of the job.)