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Published online by Cambridge University Press: 26 January 2016
Sweeping across the social and political landscape of the northeastern United States during the late 1820s and early 1830s, the Antimasonic Party has earned a modest immortality as the first “third” party in American history. In pamphlets, speeches, sermons, protests, and other venues, Antimasons lambasted the fraternal order of Freemasonry as undemocratic, inegalitarian, and un-Christian, reviling it as a threat to the moral order and civic health of the Early Republic. Because they believed that the fraternal organization largely controlled all levels of government, antebellum Antimasons first created a social movement and then an independent political party. Even before the full emergence of modern mass democratic politics, Antimasons demonstrated the benefits of party organization, open national nominating conventions, and party platforms. Scholars with otherwise different perspectives on the “party period” tend to agree that Antimasonry had an important impact on what became the first true mass party organizations—the Jacksonian Democrats and the Whigs—and helped push the political culture in a more egalitarian and populist direction.
1. Because the two major parties of the mature “Second Party System”—the Democrats and the Whigs—had not yet fully emerged by the late 1820s and because various parties and party labels flourished at state and local levels during that period, one could argue that the Antimasonic Party was not truly the first “third party.” Nevertheless, that designation has become commonplace; see, for example, Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 (New York: Oxford University Press, 2007), 268; and Paul Goodman, Towards a Christian Republic: Antimasonry and the Great Transition in New England, 1826-1836 (New York: Oxford University Press, 1988), 4.
2. On the Antimasonic Party and movement, see Ronald P. Formisano, For The People: American Populist Movements from the Revolution to the 1850s (Chapel Hill: University of North Carolina Press, 2008), 142–58; Michael F. Holt, Political Parties and American Political Development from the Age of Jackson to the Age of Lincoln (Baton Rouge: Louisiana State University Press, 1992), 4–6, 33–87; Goodman, Towards a Christian Republic; Ronald P. Formisano, The Transformation of Political Culture: Massachusetts Parties, 1790s–1840s (New York: Oxford University Press, 1983), 197–221; William Preston Vaughn, The Antimasonic Party in the United States, 1826–1843 (Lexington: The University Press of Kentucky, 1983); Formisano, Ronald P. and Kutolowski, Kathleen Smith, “Antimasonry and Masonry: The Genesis of Protest, 1826–1827,” American Quarterly 29 (1977): 140–65CrossRefGoogle Scholar; Lorman Ratner, Antimasonry: The Crusade and the Party (Englewood Cliffs, NJ: Prentice-Hall, Inc., 1969); and Charles McCarthy, The Antimasonic Party: A Study of Political Antimasonry in the United States, 1827–1840 [PhD diss., University of Wisconsin, 1901].
3. On Morgan's disappearance, death, and the subsequent failures of the criminal justice system, see Formisano, For the People, 99–100; Vaughn, The Antimasonic Party, 7–9; Goodman, Towards a Christian Republic, 4–5; and, especially, Formisano and Smith Kutolowski, “Antimasonry and Masonry,” 147–49, 151–54.
4. Richard Hofstadter, The Paranoid Style in American Politics and Other Essays (New York: Knopf, 1965), 6, 15–16. See also Ratner, Antimasonry, 1. Ratner perceives Antimasonry as falling “in the same category with Know Nothingism, the Red Scare, and McCarthyism.”
5. Goodman, Towards a Christian Republic, 7, 38 (quoted). Goodman's analysis of the movement as animated by “Christian republicanism” is more persuasive than his social-psychological interpretation.
6. Formisano and Smith Kutlowski, “Antimasonry and Masonry”; and Formisano, For the People, 91–92. Both Formisano and Goodman make compelling arguments regarding the multiple factors behind the rise of political Antimasonry in the late 1820s and 1830s, and my focus on Antimasons’ legal grievances is not meant to detract from the role of those other factors. For a discussion of the disagreements between Goodman and Formisano about the role of economic forces in Antimasonry's rise, see Formisano, 92–94.
7. Formisano, For the People 99–100, 109–10, 112. For Antimasons’ efforts to change the judicial system, see also 133, 136–37, 138, 139.
8. Jeffrey Abramson, We, the Jury: The Jury System and the Ideal of Democracy (Cambridge, MA: Harvard University Press, 2000), 22–47, 67–85; Harrington, Michael P., “The Law–Finding Function of the American Jury,” Wisconsin Law Review 1999 (1999): 377–427Google Scholar; Lettow, Renee B., “New Trial for Verdict Against Law: Struggles Between Judges and Juries in Early Nineteenth Century America,” Notre Dame Law Review 71 (1996): 505–53Google Scholar; Harris, Deidre A., “Jury Nullification in Historical Perspective: Massachusetts as a Case Study,” Suffolk University Law Review 12 (1978): 968–1011Google Scholar; John Murrin, “Magistrates and Sinners and a Precarious Liberty: Trial by Jury in Seventeenth Century New England,” in Saints and Revolutionaries: Essays in Early American History, David D. Hall, John M. Murrin, and Thad W. Tate eds. (New York: W. W. Norton, 1984), 152–206; (author unidentified) “The Changing Role of the Jury in the Nineteenth Century,” Yale Law Journal 74 (1964): 170–92CrossRefGoogle Scholar; and Howe, Mark DeWolfe, “Juries as Judges of the Criminal Law,” Harvard Law Review 52 (1939): 582–616CrossRefGoogle Scholar. For a comparative analysis of the Precolonial, Colonial, and Revolutionary Era juries in America and England, see J.R. Pole, Consent and Contract: Representation and the Jury in Anglo-American Legal History (Charlottesville: University of Virginia Press, 2010). The reader will see that, beyond this introduction to the article, at note 16 and accompanying text, I explain jury nullification and provide an extensive list of citations.
9. “Changing Role of the Jury,” 191; Harrington, “Law-Finding Function of the American Jury,” 380, 405, 427–28, 432, 435, 436; and Abramson, We, the Jury, 88. Going hand in hand with the greater self-confidence of judges and lawyers was the concerted effort of prominent jurists, such as United States Supreme Court Justice Joseph Story, to “professionalize” the study and practice of law. See note 140 and accompanying text.
10. “Changing Role of the Jury,” 191–92; Harrington, “Law-Finding Function of the American Jury,” 380, 435–37; and Abramson, We, the Jury, 89–90.
11. See, for example, Harris, “Jury Nullification in Historical Perspective,” 1001–3; Howe, “Juries as Judges,” 607–09; and John R. Mulkern, The Know-Nothing Party in Massachusetts: The Rise and Fall of a People's Movement (Boston: Northeastern University Press, 1999), 40–59, 106; see also Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in the Young Republic (New York: Oxford University Press, 1971).
12. On these various developments, see Dickson D. Bruce, Earnestly Contending: Religious Freedom and Pluralism in Antebellum America (Charlottesville: University of Virginia Press, 2013); Nathan Hatch, The Democratization of American Christianity (New Haven: Yale University Press, 1991); Kevin Charles Butterfield, “Unbound by Law: Association and Autonomy in the Early Republic” (PhD diss., Washington University, 2010); Johann N. Neem, Creating a Nation of Joiners: Democracy and Civil Society in Early National Massachusetts (Cambridge, MA: Harvard University Press, 2008); Brown, Richard D., “The Emergence of Urban Society in Rural Massachusetts, 1760–1820,” Journal of American History 61 (1974): 299–51CrossRefGoogle Scholar; Goodman, Towards A Christian Republic; Formisano, Ronald P., “Deferential-Participant Politics: The Early Republic's Political Culture, 1789–1840,” American Political Science Review 68 (1974): 473–87CrossRefGoogle Scholar; Formisano, The Transformation of Political Culture; Jeffrey L. Pasley, “The Tyranny of Printers”: Newspaper Politics in the Early American Republic (Charlottesville: University Press of Virginia, 2001); John Nerone, The Culture of the Press in the Early Republic: Cincinnati, 1793–1848 (New York: Garland, 1989); and Priscilla Hawthorne Fowle, “Boston Daily Newspapers, 1830–1850” (PhD diss., Radcliffe College, 1920), 151, 154–55.
13. Whereas in seeking to explain the shift in power from juries to judges previous scholars have noted judges’ displeasure with the inconsistent verdicts delivered by juries drawn from much more heterogeneous jury pools (e.g., see Abramson, We, the Jury, 90; and Harrington, “The Law-Finding Function of the American Jury,” 435–37), they have not focused on the very practical problems that intrajury conflict posed to trial court judges.
14. The divergent outcomes of Antimasonry in the political and legal arenas is suggestive of Ronald P. Formisano's claim that populist movements, including the Antimasonic movement, typically combined “progressive” and “reactionary” elements (Formisano, For the People, 1–18). However, from the standpoint of many former Antimasons, the long-term legal outcomes described here would have largely been unintended consequences.
15. For an excellent historical and philosophical analysis of the United States jury, past and present, see Abramson, We, the Jury. For a critique of Abramson's perspective, see Pepper, David A., “Nullifying History: Modern Day Misuse of the Right to Decide the Law,” Case Western Reserve University Law Review 50 (2000): 599–643, 637–39Google Scholar.
16. “Jury nullification” occurs when a jury acquits a defendant who is otherwise guilty based on the facts of the case because jurors’ collective conscience leads them to decide either that the underlying law is substantively unjust or that the application of the law to the particular facts before them would result in a miscarriage of justice. Thus, jury nullification involves the jury in a process of judging the law and not just establishing the facts of a case and mechanically applying the law as instructed by a judge. For some key works in the abundant literature on jury nullification, see Dale, Elizabeth, “People v. Coughlin and Criticisms of the Criminal Trial Jury in Late Nineteenth-Century Chicago,” Northern Illinois University Law Review 28 (2008): 504–36Google Scholar; Dale, Elizabeth, “Not Simply Black and White: Jury Power and the Law in Late Nineteenth Century Chicago,” Social Science History 25 (2001): 7–27Google Scholar; Abramson, We The Jury, 57–95; Pepper, “Nullifying History”; Clay S. Conrad, Jury Nullification: The Evolution of a Doctrine (Durham: Carolina Academic Press, 1998); Leipold, Andrew D., “Rethinking Jury Nullification,” Virginia Law Review 82 (1996): 253–324CrossRefGoogle Scholar; Schopp, Robert F., “Verdicts of Conscience: Nullification and Necessity or Responses to Crises of Conscience,” Southern California Law Review 69 (1996): 1039–2116Google Scholar; Norman J. Finkel, Commonsense Justice: Jurors’ Notions of the Law (Cambridge, MA: Harvard University Press, 1995); Weinberg–Brodt, Chaya, “Jury Nullification and Jury-Control Procedures,” New York University Law Review 65 (1990): 825–70Google Scholar; Scott, Philip B., “Jury Nullification: An Historical Perspective on a Modern Debate,” West Virginia Law Review 91 (1989): 389–424Google Scholar; Harris, “Jury Nullification in Historical Perspective”; Simson, Gary J., “Jury Nullification in the American System: A Skeptical View,” Texas Law Review 54 (1976): 488–525Google Scholar; Scheflin, Alan W., “Jury Nullification: The Right to Say No,” Southern California Law Review 45 (1972): 168–226Google Scholar; “The Changing Role of the Jury in the Nineteenth Century”; and Howe, “Juries as Judges of Criminal Law.”
17. James Alexander (Stanley Katz, ed.), A Brief Narrative of the Case and Trial of John Peter Zenger, (Cambridge, MA: Harvard University Press, 1963), 78.
18. Ibid., 29.
19. Abramson, We, the Jury, 51, 57, 61, 64, 68, 83, 88–89; “Changing Role of the Jury,” 172, 178–79; Howe, “Juries as Judges,” 582, 615–16; and other works cited, particularly in note 16.
20. L. H. Butterfield, ed. Diary and Autobiography of John Adams (Cambridge, MA: Harvard University Press, 1961), 2:5.
21. Georgia's charter of 1777 declared that “the jury shall be judges of law, as well as of fact,” while Pennsylvania's constitution of 1790 guaranteed juries a similar right, especially in libel cases (Abramson, We, the Jury, 76).
22. Quoted in Abramson, We, the Jury, 76; see also, Howe, “Juries as Judges,” 595.
23. 3 U.S. (3 Dall.) 1 (1794), quoted in “Changing Role of the Jury,” 174. Judges restricted the law interpretation of the civil jury earlier than they did for the the criminal jury (Harrington, “Law-Finding Function of the American Jury,” 414–23).
24. Abramson, We, the Jury, 30.
25. William E. Nelson, Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Cambridge, MA: Harvard University Press, 1975), 29.
26. See Daniel A. Cohen, “Buzzell's Trial,” unpublished book chapter (September 2011), 5 (typescript provided by author); Conrad, Jury Nullification, 53–60; Kathryn Preyer, “United States v. Callendar: Judge and Jury in a Republican Society,” in Origins of the Federal Judiciary, Maeva Marcus ed. (New York: Oxford University Press, 1992), 173–95; Ellis, The Jeffersonian Crisis, 14–16; and Thomas C. Amory, The Life of James Sullivan, 2 vols. (Boston: Phillips, Sampson and Co., 1859), II:187–89. For a comparative analysis of libel treatises in Massachusetts and Nova Scotia during the early nineteenth century, see Lindsay Campbell, “Truth and Privilege: Libel Treatises and the Transmission of Legal Norms in the Early Nineteenth-Century Anglo-American World,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, eds. Angela Fernandez and Markus D Dubber (Oxford and Portland, OR: Hart Publishing, Ltd., 2012): 165–80. For a comparative perspective on the jury and the issue of sedition in New York and London, see Pole, Contract and Consent, ch. 3.
27. Thomas Lloyd and George Gaines, reporters, Trial of Thomas O. Selfridge … for Killing Charles Austin (Boston: Russell and Cutler, [1807]); John D. Lawson, American State Trials, 15 vols. (St. Louis: Thomas Law book Co., 1914–26), II:544–702; Charles Warren, Jacobin and Junto or Early American Politics As Viewed in the Diary of Dr. Nathaniel Ames, 1758–1822 (1931; reprinted New York: AMS Press, 1970), 183–214; Tagar, Jack, “Politics, Honor, and Self-Defense in Post-Revolutionary Boston: The 1806 Manslaughter Trial of Thomas Selfridge,” Historical Journal of Massachusetts 37 (2009): 85–104Google Scholar, and Cohen, “Buzzell's Trial,” 5–6.
28. Massachusetts, General Court, Senate, Report of the Committee, On the Subject of Jurors ([Boston]: B. Parks, [1808]), 2; and Cohen, “Buzzell's Trial,” 6.
29. Ibid., 16–17; and Massachusetts Laws 1807, ch. 139, sect. 15 (passed March 12, 1808). Howe states that this law “seems never to have been interpreted by the supreme judicial court, but it must have been an important element in the practice of the lower courts during the period of its operation, until 1836,” when the law was repealed (Howe, “Juries as Judges,” 606). For the politics behind the law's passage, see Harris, “Jury Nullification in Historical Perspective,” 1003.
30. Jones, Douglas Lamar, “The Caprice of Juries: The Enforcement of the Jeffersonian Embargo in Massachusetts,” American Journal of Legal History 24 (1980): 307–30CrossRefGoogle Scholar.
31. “The Changing Role of the Jury,” 175.
32. Howe, “Juries as Judges,” 589; and Conrad, Jury Nullification, 60–63.
33. For an excellent history of the Masonic Order in America, see Steven C. Bullock, Revolutionary Brotherhood: Freemasonry and the Transformation of the American Social Order, 1730–1840 (Chapel Hill: University of North Carolina Press, 1996).
34. Butterfield, “Unbound By Law,” 319, 325, 341–68 (quoted at 352).
35. Vaughn, Antimasonic Party, 1–9; and Goodman, Towards a Christian Republic, 3–4. In October 1828, “a badly decomposed male corpse drifted ashore” from Lake Ontario, which was thought by some to be Morgan's body (Vaughn, Antimasonic Party, 8–9).
36. Bullock, Revolutionary Brotherhood, 179 (quoted); Formisano, For the People, 98; Goodman, Towards a Christian Republic, 3–4; Smith Kutlowski, “Antimasonry and Masonry,” 146–47; Vaughn, Antimasonic Party, 23–24; and Ratner, Antimasonry, 14. Eli Bruce, then sheriff of Niagara County, directed his deputy Hiram Hopkins (Bruce's cousin) to compose a grand jury for an investigation. The result was that more than 75% of the grand jury consisted of Masons (Bullock, Revolutionary Brotherhood, 286).
37. William L. Stone, Letters on Masonry and Anti-Masonry Addressed to the Honorable John Quincy Adams (New York: O. Halsted, 1832); and Formisano and Kutolowski, “Antimasonry and Masonry,” 152–56. Stone's volume includes trial reports, legislative materials, and other documentary sources.
38. For instances of Masons who tipped off witnesses summoned to testify or who fled the area to avoid testifying, see Stone, Letters on Masonry and Anti-Masonry, 195, 399, 401, 535–36. Regarding witnesses who remained silent by invoking their Fifth Amendment rights, see 197, 201, 438–56. For descriptions of witnesses who stonewalled, were evasive, or responded falsely to questions, see 217, 455, 457, 485–86.
39. Ibid., 253, 257, 403–11, 469–70, 485–85.
40. Ibid., 254, 272–80, 411, 464, 468, 501, 562.
41. Ibid., 562.
42. Stanley Upton Mock, The Morgan Episode in American Freemasonry (Whitefish, Montana: Literary Licensing, LLC, 2011), 87. For a discussion of Bruce's role in packing juries and evading prosecution for his role in the Morgan affair, and his lawyers’ successful effort to prevent a witness who had left the Brotherhood from testifying (presumably in ways harmful to Bruce), see Formisano, For the People, 136–37.
43. Formisano, For the People, 100; and Vaughn, Antimasonic Party, 8.
44. Vaughn, Antimasonic Party, 30.
45. “Report of the Committee on the Abduction of William Morgan made to the Senate,” February 14, 1829, excerpted in Ratner, Antimasonry, 28.
46. William H. Seward, “Address of the Minority of the Members of the New York Legislature of 1831,” excerpted in Ratner, Antimasonry, 76.
47. Vaughn, Antimasonic Party, 99.
48. Ibid., 98 (for Pennsylvania), 188 (for Connecticut), 141 (for Rhode Island), 80 (for Vermont), and 126 (for Massachusetts).
49. The non-enforcement of the law led Massachusetts Antimasons to characterize the statute as “partial and inefficient” and to propose to the state legislature that Masons be required to submit to the state's Secretary of State the names of those admitted to Masonic lodges and who took vows of secrecy (Antimasonic Republican Convention for Massachusetts, held in Boston, September 1834 [Boston: Leonard W. Kimball, 1834], 7–9).
50. Antimasonic Republican Convention of Massachusetts,” Held at Boston, Sept. 11, 12 & 13, 1833 (Boston: Jonathan Howe, 1833), 36.
51. Boston Christian Herald, August 10, 1831.
52. Even in relatively distant Maine, at a state convention held in 1834 Antimasons “recited afresh and as if from only yesterday the outrages, trials, and obstructions of justice occurring five to eight years earlier in western New York” (Formisano, For the People, 109–10).
53. Goodman, Towards a Christian Republic, 7–8. Greene's newspaper was originally called the Anti-Masonic Christian Herald, but by the early 1830's it had become the Boston Christian Herald.
54. Samuel D. Greene, The Broken Seal: Or Personal Reminiscences of the Morgan Abduction and Murder (Boston: Published by the Author, 1870), 161–63.
55. “S.D. Greene,” Boston Masonic Mirror, April 13, 1833, 2.; see Trial of Moore & Sevey for a Libel on Samuel D. Greene, in the Municipal Court, Boston, July Term 1833, reported by Charles H. Locke (Boston: Moore & Sevey, 1833), 6 (cited hereafter as Trial of Moore and Sevey). As Formisano points out, Charles W. Moore, a prominent Masonic publisher, “operated on the principle that ‘the spirit of persecution, ignorance and fanaticism, can never be satisfied; it must be met and overcome’” (Formisano, Transformation of Political Culture, 207 [emphasis in original]).
56. On Parker, see William T. Davis, Bench and Bar of the Commonwealth of Massachusetts in Two Volumes, vol. 1 (Boston: The Boston History Company, 1895), 429; and “Obituary: Death of Honorable Samuel D. Parker,” Boston Journal, July 29, 1873. Theodore Ferdinand has described prosecutor Parker as a “traditionalist,” bent on prosecuting those who violated even very unpopular laws, such as liquor prohibitions (Theodore Ferdinand, Boston's Lower Criminal Courts, 1814–1850 [Newark, DE: University of Delaware Press, 1992], 34). On Hallett, see Dumas Malone, eds., Dictionary of American Biography, 20 vols. (New York: Charles Scribner's Sons, 1932), 8:154–55. After the demise of the Antimasonic Party, Hallett became active in Democratic Party politics. He argued in support of the legality of Rhode Island's Dorr government (following the so-called Dorr Rebellion) in the United Stateas Supreme Court case of Luther v. Borden, which is famous for establishing the “political questions” doctrine (48 U.S. 1 [1849]). However, in time, Hallett was widely seen by his contemporaries as putting political expediency ahead of principle. By the late 1830's, “party control rather than his earlier liberalism seemed to concern him” (Dictionary of American Biography, 155).
57. Boston Mirror, July 26, 1833; and Trial of Moore and Sevey. Further reflecting interest in the trial, that article states that “some thousands have left the Court House without being able to get within hearing distance of the Court.”
58. Trial of Moore and Sevey, 1. On Thatcher's conservative economic ideology, see Christopher L. Tomlins, Law, Labor, and Ideology in the American Republic (New York: Cambridge University Press, 1993), 103–5. On Thacher as a “traditionalist,” see Ferdinand, Boston's Lower Criminal Courts, 128. On Thacher as an old–style “Federalist,” see Boston Evening Transcript, February 22, 1843, 2, (quoted).
59. Trial of Moore and Sevey, 1, 4–5. Regarding jury composition, see statements of Jeremiah Campbell, an Antimason, and Nathaniel Frothingham, a Mason (Trial of Moore and Sevey, 1); Boston Mirror, July 26, 1833 (which identifies Joseph W. Barnes as an Antimason); and Boston Advocate, July 22, 1833 (which states that Barnes is not an Antimason), 2. In all probability, Barnes was, at least, an Antimasonic sympathizer.
60. Trial of Moore and Sevey, 5 (emphasis in original).
61. Ibid., 8–56. For biographical information on Fletcher and Simmons, see Davis, Bench and Bar I: 239 and 345, respectively.
62. Trial of Moore and Sevey, 12–15, 22, 41, 43, 45–47, 51. In turn, Moore and Sevey expressed contempt for Hallett, stating that his “principal object seemed to be to discuss antimasonry and abuse the witnesses” (Boston Mirror, July 15, 1833, 3).
63. Trial of Moore and Sevey, 12–14, 45.
64. Ibid., 15.
65. Ibid., 11, 15.
66. Ibid., 46, 48, 56, 59, 62.
67. Ibid., 46. The witness's name was Thomas A. Bagley.
68. Ibid., 56. An article in Moore and Sevey's newspaper reported that, during their libel trial, Antimasons in attendance had “openly boasted” that they had “one man on the jury on whom they could depend” (“The Libel Case,” Boston Mirror, July 27, 1833, 3 [emphasis in original]).
69. Trial of Moore and Sevey, 58–59.
70. Ibid., 71–72 (emphasis in original).
71. Ibid., 73, 75. In his charge, Judge Thacher also discussed specific evidence and other issues in the case.
72. On Barnes, see note 59.
73. Trial of Moore and Sevey, 78.
74. The newspaper letters are reprinted in ibid., 76.
75. Ibid., 76 (capitals in original).
76. Letter reprinted in ibid., 77–78.
77. “The Libel Case,” Boston Mirror, July 27, 1833, 3.
78. Boston Daily Advocate, July 27, 1833, 2.
79. Trial of Moore and Sevey, 40.
80. Trial for Alleged Embracery, and Challenge of a Juror Decided by Triors. Commonwealth of Massachusetts vs. Ebenezer Clough (Boston: Beals, Homer, and Co., 1833) (cited hereafter as Trial of Clough), 10, 12, 17–19.
81. Ibid., 4–6. The word is spelled “triors” in Trial of Clough, but Judge Thacher later used the standard spelling––“triers”––in a published pamphlet. The appointment of triers was a practice under British common law and was used in some states to determine the impartiality of prospective jurors, but it was neither authorized nor forbidden under Massachusetts statute. Although never used before in Massachusetts, Judge Thacher agreed to using triers in this case, because both the prosecuting and defense attorneys consented to it. The two individuals whom Judge Thacher ultimately appointed and who served as triers were lawyers, one of whom (John Pickering) noted for the record that, in his view, judges lacked the authority to compel lawyers to serve as triers (5–6). Hallett and Parker presented their arguments to the “triers” as to whether prospective juror Sargent could be “indifferent” between the two parties (ibid., 9–21).
82. Ibid., 8, 20.
83. Ibid., 9–19.
84. Ibid., 20. Prosecutor Parker and defense attorney Hallett had one other conflict over jury selection. Parker moved to exclude Joseph Barnes, the Moore and Sevey juror who had been at the center of the post-trial controversy over the verdict. Parker stated that Barnes had acted in “contempt of court by going back on a recorded verdict” and that his “vascillating mind” meant that “there can be no certainty to trials.” Hallett replied that ten of the jurors had also published a letter about the jury's deliberations and, therefore, that “exceptions should not be taken to [Barnes], and not to the other jurors” (ibid., 41–42). See also “Municipal Court, Indictment of Ebenezer Clough and Suspension of Joseph W. Barnes,” Boston Mirror, August 17, 1833, 3 and the Boston Advocate, August 16, 1833, 2, for the competing positions taken by the Masons and Antimasons regarding the exclusion of Barnes from the Clough jury.
85. Trial of Clough, 20.
86. Ibid., 21. Presumably to Hallett's discomfort, Sargent became the trial jury's foreman.
87. Ibid., 22–23.
88. Ibid., 45–46.
89. Ibid., 32–33, 36–37, 39, 40.
90. Ibid., 50.
91. Ibid., 52. The jury took just 11 minutes to reach its verdict.
92. Guild pleaded not guilty in early September 1833 but had been granted a postponement of his trial until the Municipal Court's new term starting in October 1833 (Boston Traveler, September 6, 1833).
93. Boston Daily Advocate, July 30, 1833, 2.
94. Horatio Woodman, ed. Reports of the Criminal Cases Tried in the Municipal Court of the City of Boston Before Peter Oxenbridge Thacher (Boston: Charles C. Little and James Brown, 1845) (cited hereafter as Thacher's Criminal Cases), 333. When Thomas French was called as a witness in the trial, he stated that he had said to Guild “Damn Masonry and Antimasonry,” but that he did not say it in the jury room (“Municipal Court, Boston, Oct. Term.” Boston Daily Advocate, October 28, 1833, 2).
95. Thacher's Criminal Cases, 331, 332.
96. Boston Daily Advocate, October 28, 1833.
97. That is, if French had not actually said to Guild that, in the course of jury deliberations, he had tried to “damn” the two holdout jurors into agreeing to an acquittal of Masonic editors Moore and Sevey in their libel case, then, stated Parker, “it could not be material to inquire what [French] had done” (Thacher's Criminal Cases, 332).
98. Ibid.
99. Ibid., 335–36.
100. Ibid., 333, 339–40.
101. Ibid., 339–40.
102. Ibid., 341.
103. Ibid., 342–43.
104. Ibid., 342, 343, 345.
105. Greene, The Broken Seal, 230.
106. Peter Oxenbridge Thacher, Observations on Some of the Methods Known in the Law of Massachusetts to Secure the Selection of and Appointment of an Impartial Jury in Cases Civil and Criminal (Boston: Russell, Odiorne & Co., 1834).
107. Ibid, 14–23. The specific reference to the Clough case is at 22.
108. Ibid., 14.
109. Ibid., quoted at 16 and 22.
110. Formisano, The Transformation of Political Culture, 213. Ironically, Antimasonry's decline was the result, in large part, of its success: the social pressure that Antimasonry exerted against Free Masonry led to a large decrease in the number of Masonic lodges. By 1834, the number of Masonic lodges and charters had declined not only in New York state, the seedbed of political Antimasonry, but also in “almost every part of New England” (Boston Mercantile Journal, October 9, 1834, 3; October 16, 1834, 1). See also Butterfield, “Unbound by Law,” 341; and Goodman, Towards a Christian Republic, 238.
111. Daily Evening Transcript, November 20, 1834, 2. Although the Transcript was not a partisan newspaper, its editor, Lynde M. Walter, appears to have been a Whig (Priscilla Hawthorne Fowle, “Boston Daily Newspapers,” 151, 154–55). For a rebuttal of the claim that the holdout juror was a musician for Kneeland's group, see Boston Daily Whig, November 22, 1834, 2.
112. Boston Mercantile Journal, November 27, 1834, 3.
113. Argument of James T. Austin, Attorney General of the Commonwealth, Before the Supreme Judicial Court in Middlesex, on the Case of John R. Buzzell (Boston: Ford and Damrell, 1834), quoted at 11; Trial of John R. Buzzell, Before the Supreme Judicial Court of the Massachusetts, for Arson and Burglary, in the Ursuline Convent, at Charlestown (Boston: Russell, Odiorne and Metcalf, 1834); Trial of the Persons Charged With Burning the Convent in the Town of Charlestown … No. 1 (Boston: Allen & Co., [1834]); Trial of William Mason, Marvin Marcy, Jr. and Sargent Blaisdell, Charged with Being Concerned in Burning the Ursuline Convent, in Charlestown (Boston: Allen & Co., [1834]); Ray Allen Billington, Protestant Crusade, 1800–1860 (New York: Macmillan, 1938), 68–92; Billington, Ray Allen, “The Burning of the Charlestown Convent,” New England Quarterly 10 (1937): 4–24CrossRefGoogle Scholar; and Cohen “Buzzell's Trial,” 11–13, 52–56.
114. Vermont Free Press, August 30, 1834, 2. The case being discussed by the editor involved defendants acquitted of involvement in a duel.
115. Argument of James T. Austin, 11–12; and Cohen, “Buzzell's Trial,” 56.
116. “Riots and Masonry,” Vermont Free Press, January 3, 1835, 2. This editor's spurious association of the “Convent affair” with Masonry is a good example of the sort of thinking that undergirded Richard Hofstadter's contemptuous characterization of the Antimasonic movement as paranoid.
117. On labor cases, see Tomlins, Law, Labor, and Ideology in the Early American Republic, 101–222; and Conrad, Jury Nullification, 106–08. On liquor law cases, see Howe, “Juries as Judges,” 607–10; and “Changing Role of the Jury,” 177 fn. 47. On fugitive slave cases, see Abramson, We, the Jury, 80–82. I should note, however, that I do not mean to equate the use of jury nullification based on sectarian or partisan animosity with its use based on moral principle. The deep exercise of moral conscience, for example, in juries’ nullification of the federal Fugitive Slave Act is, in my view, of a different nature than that of nullification based on knee-jerk sectarian or partisan (dis)favor.
118. On the political orientation of the judges discussed in this paragraph and the next: Although nominally a Republican, United States Supreme Court Justice Joseph Story held views similar to his Federalist (and later, his Whig) colleagues (R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic [Chapel Hill: University of North Carolina Press, 1985], 53–54). Although Lemuel Shaw, the Chief Justice of the Massachusetts Supreme Judicial Court, refrained from party politics once on the court, he was, according to Leonard Levy, a “staunch Whig” (Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw [New York: Oxford University Press, 1957], 27). On Curtis as a Whig, see Allen Johnson and Dumas Malone, eds., Dictionary of American Biography 4 (New York: Charles Scribner's Sons, 1930): 610. The dynamics of partisan politics in relation to jury developments may have been different in other states depending upon the trajectories of the rise of the Second Party System and other social and political factors.
119. Quoted in Abramson, We, the Jury, 79.
120. “Changing Role of the Jury,” 176.
121. Although the Porter ruling is most famous for Chief Justice Shaw's repudiation of the jury's law-finding power, Hallett won on the question of a defense attorney's right to explain the law to the jury, which was a well-established practice in Massachusetts's criminal courts, and therefore won a new trial for his client. 51 Mass. (10 Met) 278–81 (1845).
122. Curtis's opinion in United States v. Morris is reprinted in Benjamin R. Curtis (his son), ed. A Memoir of Benjamin Robbins Curtis, L.L.D., With Some of His Professional and Miscellaneous Writings, 2 vols. (1879; reprinted Union, NJ: The Lawbook Exchange, Ltd., 2002), II:176–90, quoted at 180, 183 (excerpted from the opinion of the Ohio Supreme Court in Montgomery v. The State).
123. Quoted in “Changing Role of the Jury,” 177.
124. Quoted in “Changing Role of the Jury,” 176 fn. 41. Howe characterized the proposed jury amendment as motivated principally by popular animus against temperance laws, but other scholars attribute it to public opposition in Massachusetts (and elsewhere) to the federal Fugitive Slave Act of 1850 (“Changing Role of the Jury,” 177 fn. 47; and Conrad, Jury Nullification, 75–88).
125. Quote of Richard H. Dana in “Changing Role of the Jury,” 177.
126. Scholars appear to agree that the defeat of the jury provision in the referendum was the result of its being connected with other proposals that the public opposed (“Changing Role of the Jury,” 183; and Howe, “Juries as Judges,” 609). At the partisan, political level, Neem argues that the defeat of some constitutional proposals, including one in support of an elective judiciary, was the result, at least in part, of division between Democrats and Free Soilers and to the opposition of Whigs (A Nation of Joiners, 151–52).
127. “Changing Role of the Jury,” 183.
128. Quoting from Sparf and Hansen v. U.S., 156 U.S. 151, 174 (1895), in Pepper, “Nullifying History,” 637. Regarding Shaw's national prominence as a judge, see Levy, Law of the Commonwealth, 3. Regarding Shaw's influence on the Supreme Court's reasoning specifically in Sparf and Hansen, see Levy, Law of the Commonweatlth, 295; and “Changing Role of the Jury,” 190.
129. Despite the general trend, the shift of power from juries to judges was by no means uniform across all jurisdictions. For example, in late nineteenth century Chicago, an economically mature and heterogeneous city, “influential lawyers and judges” continued to affirm the jury's power to decide the law (Dale, “Not Simply Black and White,” 16).
130. Howe, “Juries as Judges,” 615–16. As Harrington has similarly noted, judges justified a dramatic curtailment of the jury's authority through “a novel interpretation of the process of reception in the common law. A number of courts successfully restricted the jury's power over law by reading into their state constitutions a requirement that jury trials be conducted according to the usages of the common law of England. English common law jury practice was found to be a dormant characteristic of American law merely waiting to be resurrected by nineteenth-century judges” (Harrington, “The Law-Making Function of the Jury,” 380, 429, 432).
131. “The Rights of Jurors,” The Law Reporter (October 1839): 188–89 (quoted).
132. “Changing Role of the Jury,” 183.
133. For a somewhat different effort to impose standardized legal norms at the state level at the expense of local community values, see Laura Edwards, The People and their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009).
134. “The Rights of Jurors,” 192.
135. Howe, “Juries as Judges,” 615; and Abramson, We, the Jury, 79. See also citations in notes 9 and 10, and accompanying text.
136. Ellis, The Jeffersonian Crisis, 222–23; and Harris, “Jury Nullification in Historical Perspective,” 1002–3; and other sources cited in notes 26–32.
137. David Henshaw, “An Address Delivered Before An Assembly of Citizens From All Parts of the Commonwealth, at Faneuil Hall,” Boston, July 4, 1836 (Boston: Beals and Greene, 1836): 7–27 (quoted at 20); and Mulkern, Know-Nothing Party in Massachusetts, 40–59, 106. Although United States Supreme Court Justice Joseph Story, a member of that Court until 1845 and a prominent opponent of the jury's law-interpretation authority, was an “avowed Republican,” he was no friend of Andrew Jackson or Jacksonian Democrats, and his suspicion of “the people” brought many of his views in line with those of conservative Whigs. See Malone, Dictionary of American Biography, 18: 103; and Morris L. Cohen and Valerie L. Horowitz, eds., Joseph Story and the Encyclopedia Americana (Clark, NJ: The Lawbook Exchange, Ltd., 2006), v. See also Newmyer, Supreme Court Justice Joseph Story.
138. Regarding Masonry's decline, see Formisano, For the People, 115; and Goodman, Towards a Christian Republic, 244.
139. For an excellent discussion of that shift in emphasis, see Abramson, We, the Jury, especially ch. 1–3.
140. Pennsylvania Gazette, quoted in Alexander, A Brief Narrative, 78; and Newmyer, Supreme Court Justice Joseph Story, 211, 68, 234. I am grateful to one of the anonymous reviewers of this article both for offering the insight that Justice Story and other jurists like him were actively seeking to foster the development of a “judge-centric” legal system, and for flagging for me some very useful scholarly works on this subject (which encompassed the publication of legal treatises). Although it would take time, Story was ultimately able to exert considerable influence not only through his roles on the New England Circuit Court and the United States Supreme Court, but also through his position at Harvard Law School and through the many legal texts and treatises that he wrote, and that lawyers actually read and utilized. On this point, see Newmyer, Supreme Court Justice Joseph Story, 301, 303–304. Regarding the role of Story's influence on legal culture as an author of legal treatises, see G. Blaine Baker, “Story'd Paradigms for the Nineteenth-Century Display of Anglo-American Legal Doctrine,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, Angela Fernandez and Markus D Dubber eds. (Oxford and Portland, Oregon: Hartland, Publishing Ltd., 2012), 82–110 (especially 88, 103). New York Supreme Court Justice James Kent was also an influential judge and treatise writer. See Fernandez, Angela, “Pierson v. Post: A Great Debate, James Kent, and the Project of Building a Learned Law for New York State,” Law and Social Inquiry 34 (2009): 301–36CrossRefGoogle Scholar; and Philip Girard, “‘Of Institutes and Treatises’: Blackstone's Commentaries, Kent's Commentaries and Murdoch's Epitome of the Laws of Nova Scotia,” in Fernandez and Dubber, Law Books in Action, 43–62.
141. Frederic Hathaway Chase, Lemuel Shaw: Chief Justice of the Supreme Judicial Court, 1830–1860 (Boston: Houghton Mifflin Company, 1918), 3.
142. Robert E. Shalhope, The Baltimore Bank Riot: Political Upheaval in Antebellum Maryland (Urbana: University of Illinois Press, 2009); David Grimstead, American Mobbing, 1828–1861 (New York: Oxford University Press, 1998), 3–37, 199–205; Paul A. Gilje, Rioting in America (Bloomington: Indiana University Press, 1996), 60–84, passim; Gilje, The Road to Mobocracy: Popular Disorder in New York City, 1763–1834 (Chapel Hill: University of North Carolina Press, 1987), 138–43, 162–70, 235, 286; Prince, Carl W., “The Great ‘Riot Year’: Jacksonian Democracy and Patterns of Violence in 1834,” Journal of the Early Republic 5 (Spring 1985): 1–19CrossRefGoogle Scholar; Michael Feldberg, The Turbulent Era: Riot and Disorder in Jacksonian America (New York: Oxford University Press, 1980), 41–47, 58, 71–72; and Leonard L. Richards, Gentlemen of Property and Standing:” Anti-Abolition Mobs in Jacksonian America (New York: Oxford University Press, 1970).