1761-63 Christopher Gadsden Election Controversy

There is no doubt that Britain was determined to bring the colonists under much closer control after 1760. 

The surprising thing is that the Board of Trade began their efforts first in SC, in coordination with a new Governor, Thomas Boone.  They, collectively, could not have picked a worse target than Christopher Gadsden.  They probably picked him because of the trouble he made over the 1761 peace treaty with the Cherokee.

When Boone arrived in Charleston in 1761, he announced that the Board of Trade had seen fit to reexamine South Carolina's election law -- that had been in quiet and successful operation for 40 years -- and decided that they needed to be rewritten to give the Royal Governor discretionary power of approval over membership in the House of Commons.

This may seem a technical point, but it is not.  The sole judge of whether a member of a legislative body has been duly elected belongs to that body resides in the legislative body itself, not the executive.  This had been established in Britain's Parliament since 1600.  And as Judge Story, in 1830, wrote of a provision in the Constitution making this explicit for our own House and Senate:

. . . According to Justice Joseph Story in his Commentaries on the Constitution of the United States, it was a necessary attribute of the separation of powers. If that power, Justice Story wrote, were "lodged in any other, than the legislative body itself, its independence, its purity, and even its existence and action may be destroyed, or put into imminent danger." Further, Story declared, the power allowed each House to "sustain the free choice of its constituents." The only objections to the clause in the state ratifying conventions were by those who wanted the power to judge elections to reside with the state legislatures, as it had under the Articles of Confederation. 

The power to judge elections extends to investigations of fraud. It includes the power to subpoena witnesses and to impose punishment for perjury. In Morgan v. United States (1986), then-Circuit Judge Antonin Scalia declared that the House's determination as to which of two candidates had been elected was nonjusticiable under this clause, a position supported in dicta by previous Supreme Court cases. . . . . Powell v. McCormack (1969).

It gives the King the power to lawfully and easily dispense with "the troublesome priest."

22 Dec. 1761 - New Royal Governor, Thomas Boone, arrives in Charleston. (McCrady, Gads v Laurens)

25 Dec. 1761 - Boone issued a proclamation announcing that his Majesty had been pleased with the advice of his Council to declare his disallowance of certain acts, one of them, that of 1759, amending the election law of 1721, — which amendments related only to the qualifications of representatives, — and that as the present Assembly had been chosen under the act of 1759, thus disallowed and repealed, he dissolved it and issued writs for a new election.

1 Feb. 1762 (est)  New elections held in SC. 

19 March 1762 - Boone convenes the Commons. He said that having had occasion lately to examine the election act of 1721 he had found it so loose and general, so little obligatory in prescribing the forms to be observed on various occasions that might happen, that he thought a new law absolutely necessary. He then went into a dissertation upon the subject, and in order that the endeavor of the Commons might not be fruitless he undertook to state to them the reason which had deter mined the Lords Commissioners of Trade and Plantations to disallow the act of 1759.  Boone wanted a right to judge of the qualifications of these members.

1 Aug. 1762 (est) - (McCrady) A writ of election had been issued to the church wardens of St. Paul's Parish for the special election of a member, upon which a return had been made by them that Christopher Gadsden had been duly elected.

13 Sept. 1762 - (McCrady) Gadsden appeared and qualified before the House.  When he attended the Gov. however, Boone refused to swear him in, instead summoning the whole Assembly to meet him in his Council Chamber. He then objected to Mr. Gadsden's election because the church wardens had not been sworn for that particular election. It appeared, however, that the church wardens had taken an oath when elected to that office that they would duly execute the duties pertaining to it, of which duties the holding of such elections was a part.

McCrady 356-366,

It was claimed too that wherever a representative body is known to the law it is invariably the final judge of the qualification of its members, and that in this instance the House had approved Mr. Gadsden's election. The Governor, however, not only refused to admit Mr. Gadsden's election, but dissolved the House of Assembly for their contumacy.  

The technical point raised by the Governor was certainly not without force. The provision of the act of 1721 required that the church wardens — or in case there should be wanting church wardens in any parish, the persons named in the writs to manage an election — should execute the writs faithfully, " to which every such person shall be sworn by any one justice of the peace for the county," etc. Under this provision it seems quite clear that the church wardens were to be specially sworn to the discharge of these specific duties, which did not in fact pertain to their duties as church wardens, but were civil duties super added by special legislation. But the act of 1721 had been in quiet and successful operation for forty years and the continued practice under it had sanctioned the custom ; and even if the Governor was technically right, it was no part of his duty to stir up the matter, least of all in the way in which he did. His subsequent conduct induces the suspicion that he was rather on the alert for a cause of quarrel, especially with Mr. Gadsden. 

10 Nov. 1762 (est) -  In the ensuing winter a new election was held and a new Assembly convened of which Christopher Gadsden was again returned a member. 

10 Dec. 1762 (est) - The first measure of the new Assembly was a remonstrance to the Governor against the late dissolution of the preceding House, declaring that it would tend to deprive the House of Assembly of a most essential privilege — that of solely determining the validity of the election of its own members, and would produce the most dangerous consequences.  

[Speaking the Language of 1689 and 1628]: 

-- They resolved that the power of examining and determining the legality and validity of all elections of members to service in the Commons' House of Assembly of the province was solely and absolutely in and of right did belong to and was inseparable from the representatives of the people met in General Assembly.  

-- That the Governor could not constitutionally take notice of any thing said or done in the Commons' House of Assembly but by their report, and that his censuring their proceedings was contrary to the usage and custom of Parliament.  

-- That Christopher Gadsden, having been declared by the last Commons' House of Assembly a member thereof duly elected, and having taken the proper qualification oath, his Excellency the Governor's refusal, when requested by message from the House to administer to him the State oaths required by law, in order to enable him to take his seat therein, was a breach of privilege.  

-- That the abrupt and sudden dissolution of the last Assembly for matters only cognizable by the Commons' House was a most precipitate, unadvised, unprecedented procedure of the most dangerous consequences, being a great violation of the freedom of elections and having a manifest tendency to subvert and destroy the most essential and invaluable rights of the people, and to reduce the power and authority of the House to an abject dependence and subservience to the will and opinion of the Governor.  

15 Dec. 1762 (est) - The Governor replied to these resolutions, insisting upon his right to scrutinize the election of members in the exercise of his executive power under the Crown; and several communications having passed between the Commons and himself, on the . . . 

16 Dec. 1762 -  It was resolved in the House "that his Excellency the Governor having repeatedly and contemptuously denied the just claim of the House (solely to examine and determine the validity of the elections of their own members) hath violated the rights and privileges of the Commons' House of Assembly of this province ; and further that this House (having ineffectually applied to his Excellency for satisfaction of the breach of privilege) will not enter into any further business with him until his Excellency shall have done justice to the House on this important point."  

5 Feb. 1763 - But this action was not taken without strenuous opposition by some of the Assembly, and Mr. William Wragg in a communication to the Gazette of the 5th of February, 1763, gives his reasons for having opposed the resolutions:  

(1) Because there had been borrowed out of the town ship fund (appointed for the encouragement of settling foreign Protestants among them) the sum of £54,000 and upward for the payment of Rangers raised during the Cherokee war. If no business were done, that fund could not be reimbursed.  

(2) An immediate check would be given to the application which their agent recommended should be made for a certificate of the forces actually employed in the province to be laid before the Lords of the Treasury for procuring a proportion of the money granted by Parliament for the several colonies. 

(3) The necessity of withdrawing the garrison from Fort Prince George and thereby abandoning the back settlers to the Indians.  

(4) The public credit must suffer, and  

(5) involve the province in difficulties and reduce individuals to a state of misery because the Commons happen to be displeased with his Excellency's conduct.  

These grounds upon which Mr. Wragg acted were certainly strong and sensible, however much cause there was for just irritation at the Governor's conduct. But Mr. Gadsden took up the controversy and replied in a communication taking up seven and a half columns in the Gazette, which would fill a pamphlet of fifty pages of three hundred words each.  

8 March 1763 SC Gazette -  This brought on also another controversy between Mr. Laurens and himself in regard to the matter ; and the war waged until a subscriber worn out with it writes to the editor that the Gazette of the 15th of February had come to his hands that day ; but that instead of being entertained with the weekly occurrences which he had always understood to be the end of that paper, he found himself engaged in reading a long and unintelligible controversy concerning a late unhappy dispute. He goes on to say that if a further vindication of the proceedings in that matter was deemed necessary, he sincerely wished that some impartial and judicious person had undertaken the task.   

The writer is very severe upon Mr. Gadsden's style, which certainly was not calculated to elucidate the subject, nor indeed was anything more necessary to a clear under standing of it than the able report and resolutions of the committee adopted by the House on the one hand and Mr. Wragg's clear and concise objections to the course pursued on the other.  

South Carolina as we have seen, as well as the other provinces, had had agents in London for the purpose of representing the interests of the colony and of presenting to the proper departments of the British government any communications that they might he instructed to make to the colonial department and to the agents of the other colonies resident in London, and to execute any other instructions that might be entrusted to them. This agency, as we have before observed, was certainly a singular institution. . . . .  

There was now, however, but one agent, Mr. Charles Garth, who had been a member of Parliament, and who was regularly constituted and appointed by act of the 19th of May, 1762, in the language of the statute "to solicit and transact the affairs of the province in Great Britain." But this agent, while nominally the agent of the province, and so it might be supposed an officer under the Governor and Council, was in practice strictly the agent of the Commons' House, and through him this body by a committee of correspondence kept up a regular channel of communication with the government at home entirely independent of the Governor. And though these communications had — until Governor Boone's interference with one of them — passed through the Governor's hands with his mail, he was, or was supposed to be, in ignorance of their contents.  

Governor Boone's conduct interrupted this channel of communication. Upon one occasion he broke the seal of a communication from Mr. Garth and sent the letter to the House with an abrupt message ; this was considered as a breach alike of propriety and confidence, and no more letters from Mr. Garth came through him.  

It is difficult to conceive an institution more calculated to excite distrust and suspicion and to produce complications between the executive and legislative departments of a government. It was of course resorted to upon this occasion. All the communications relating to the dispute with the Governor were sent by the committee to Mr. Garth, who was instructed to print them and to submit the whole dispute to the Ministry. The Assembly also adopted an address to his Majesty, setting out their unhappy difficulties with the Governor, maintaining that his assumed power of interfering in their popular election would not only violate the charter of the province under which they were prospering and happy, but would be destructive of their personal rights as British subjects.  

It is curious to observe how pertinaciously the colonists clung to the charter of the Proprietors, as still in force as far as their rights were concerned, though the government under it had been overthrown and the charter itself surrendered. This address was also forwarded to Mr. Garth and presented by him at a meeting of the British Ministry and by them referred to the Board of Trade and Plantations. The proceedings were also published by order of the House in both the Gazettes of the province.  

The House meanwhile adhered to their resolution of having nothing to do with the Governor, laid all his messages and recommendations on the table, refused to pass a tax bill or to appropriate money for the salaries of the Governor or of officers, not even for their faithful agent, Mr. Garth.  

But there was one matter in which they could not carry out their theory of absolute non-inter course, and that was in the qualification of new members, as the custom had always been that the Governor should administer the State oaths ; and it happened at this time that Sir John Colleton had been elected to fill a vacancy. 

In questionable taste, as if to irritate the Governor, the House in selecting two of its members to accompany the newly elected member to the Governor and see him take the oaths, sent Mr. Moultrie and Mr. Gadsden, the person whose seat the Governor questioned.  

17 Sept. 1762 -  Mr. Gadsden reported to the House that in obedience to these orders Mr. Moultrie and himself had attended Sir John Colleton to see him take the State oaths before the Governor at his own house, when Sir John in their presence informed his Excellency that he had taken the usual qualification oath in the House and desired his Excellency to administer the State oaths to him; that thereupon his Excellency was pleased to ask Mr. Gadsden and Mr. Moultrie if they had any message to deliver to him from the Assembly ; that Mr. Gadsden had answered that he and Mr. Moultrie attended Sir John Colleton by order of the House to see him take the State oaths ; that his Excellency had replied that the House had no right to order any person into his dwelling house, and thereupon called his servant to open the door for Mr. Gadsden and Mr. Moultrie, at the same time taking Sir John by the sleeve and saying that if he had any business his Excellency was ready to transact it with him ; that thereupon Mr. Gadsden and Mr. Moultrie bowed and retired, the Governor literally showing them to the door. The Governor had certainly given a Roland for an Oliver. Sir John Colleton was admitted to his seat on his own statement that he had taken the State oaths before the Governor. But his Excellency was not satisfied.  

Four other members having been elected and having qualified before the House were sent by its order with Mr. Parsons and Sir John Colleton to witness their taking the State oaths before the Governor. They returned, reporting that they had gone accordingly, but that the Governor had refused, saying that he would not take any man's word, but would send for the Journal and see for himself, and then act as he should think proper.  

Upon this the House of Assembly resolved that his Excellency the Governor, by his treatment of the members of the House who waited upon him, to see several gentlemen duly returned members of the House take the State oaths, hath been guilty of new insults to, and breach of the privileges of, this House.  

Letters were now received from the agent in England, Mr. Garth, saying that the government there could not act upon the ex parte statement of the Commons ; but that leave had been sent Governor Boone that he might come to England to be heard. The Governor did not, however, accept the invitation, and the Board of Trade, awaiting his coming, would not proceed in the investigation.  

6 Jan. 1764 - But Governor Boone at last gave up the controversy. Mr. Thomas Smith and Mr. Brailsford having been elected members of the House on the 6th of January, 1764, were sent with Mr. Pinckney and Mr. Drayton to offer to take the State oaths before the Governor, and to their surprise his Excellency, without further opposition, administered them.  

The Governor having given up this point, a motion was now made to discharge the order of the 16th of December, 1762, to do no more business with him; but it was lost. Governor Boone then prorogued the Assembly, and upon its reassembling in May he attempted to renew his relations with the Commons ; but the House continuing firm in its refusal to have any intercourse with him, he availed himself of his leave of absence and . . .  

15 May 1764 (est)  Boone left the Colony and sailed to London. Governor Boone was regarded as a dissolute man, and with him there sailed a lady who was not his wife. It is very probable that this social scandal had much to do with the relations of the Governor to the gentlemen who constituted the House, and this, with the absence of any acknowledgment of mistake or regret upon his part, for the obstruction to the public business, or of any assurance that he would not resume his offensive course, induced the refusal of the House to resume their intercourse with him. . . .

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(McCrady 372- 375)
  

The retirement of Governor Boone left the administration of the government for a second time upon Lieutenant Governor Bull, whose lot it seemed to be to stand ready to take up and sustain the government when the Royal Governor, who was sent from England to rule the colony, had brought it to the verge of disaster, if not of ruin. He addressed the Assembly, and harmony was immediately reestablished between that body and the executive. The liabilities of the province were paid and peace and good will restored in South Carolina.   

But not so in England as to the colony's affairs. On the arrival of Governor Boone in England he ad dressed the Board of Trade and Plantations, exhibiting his repeated addresses to the Assembly to provide for the emigrants who were coming into the province to protect the frontier's settlements from the Indians, and to make appropriations for the public creditors. He represented that the House had taken unreasonable offence at his being thus urgent in the duties of his office ; that his zeal in executing the instruction of the Board and the commands of his Majesty while contending for the prerogatives of the Crown was the cause of these complaints against him.  

(Date?)  The Board having heard him very properly reported, blaming the Governor for "having been actuated by a degree of passion and resentment inconsistent with good policy and unsuitable to the dignity of his situation ; " and blaming the House for having violated their duty to his Majesty and his subjects of the province by totally interrupting the public business for so long a time — a conduct highly deserving his Majesty's Royal displeasure. They expressed no opinion on the constitutional question, the original cause of the dispute, the refusal of the Governor to qualify an acknowledged member of the Assembly ; but went on to recommend what the Governor had with held, viz., the appointment of deputies to administer the State oaths to members elected to the General Assembly. 

(Date?)  Mr. Garth, the agent, appealed from this vote of censure on his constituents, the Assembly, and employed Dunning, the eminent English lawyer, afterward Lord Ashburton, to represent their constitutional right and justify their conduct ; but it is not known what, if any, steps were taken by him in their behalf.  Before the dispute terminated the agitation about the Stamp act had commenced.  

Dr. Johnson, from whose Traditions we have taken much of the account of the controversy with Governor Boone, observes very truly that there can be little doubt that Governor Boone's interference with the election of Christopher Gadsden was an exciting cause in South Carolina for the jealousy of their public and private rights, and that these feelings were confirmed and strengthened by the countenance given to Governor Boone by the British Ministry. Dr. Johnson gives the following names of those who took a prominent part in this controversy, and says that it cannot be doubted that this dispute roused in them, their families, and friends, that spirit of resistance which led to the Revolution, and carried them through it triumphantly : Benjamin Smith, Charles Pinckney, James Moultrie, Thomas Wright, Peter Manigault, Henry Laurens, Thomas Lynch, James Parsons, David Oliphant, Rowlins Lowndes, Isaac Mazck, Thomas Bee, Christopher Gadsden, William Scott, John Rutledge, Eben Simons, William Roper.
But it was Christopher Gadsden who took the leading part in this controversy, not only be cause of the accidental connection with it which Governor Boone's unwarranted interference with his election gave him; but because of his own individual character and ability — a leading part which he was to maintain through out the struggle which was to follow. Some account of him, therefore, will be appropriate here in the commencement of the story. 

Christopher Gadsden was born in Charlestown in 1724. His father was Thomas Gadsden, a Lieutenant in the Royal Navy and the King's Collector of the port of Charlestown. Sent to England he received a classical education to which he added a knowledge of some of the Oriental languages. 

Returning from England as a passenger on board a King's ship the purser died, and Mr. Gadsden was appointed to take his place, which he held for two years. He then left the service and devoted himself with great success to a mercantile life, and like many other merchants of his time was also a planter.  

When Governor Lyttleton made his expedition against the Cherokees in 1759, there was not a single field-piece mounted in all Carolina. Mr. Gadsden, who was a member of the legislature, obtained the passage of an act for raising a company of artillery. He was appointed Captain, and, as we have seen, accompanied Governor Lyttleton upon his expedition. He was Colonel of the first regiment raised by the Provincial Congress in 1775, and became Brigadier General in the Continental service, but he could not stand the restraints of a military life and resigned.  

An aristocrat by birth and surroundings, Christopher Gadsden was at heart a democrat, or, more strictly speaking, a republican, using that term in its best sense. He believed in the people and the people's rule. To them upon all occasions he appealed, and with them he acted, and they supported and followed him.  

We shall see him charged with being a demagogue ; but that he was not, for he sought not office nor position for himself. He was always ready to serve the people as a representative, whether in the Commons' House of Assembly or in the Continental Congress ; but he sought not place under the Crown, and refused the Chief Magistracy of the State when offered to him.  

His was, it has been said, the stern virtue which characterized the ancient Spartan, tempered by the milder influences of modern Christianity. Meekness, however, was not one of his characteristics.  

Without vanity, he was dogmatic and irascible.  Illogical and confused in his address, oral or written, he nevertheless had unbounded influence over the populace he addressed.  

He was an agitator ; not a constructor. He was too impracticable for a statesman, for everything must bend to the principles and views he entertained. Settled and firm in his convictions, he could not give way, nor compromise what he esteemed right, though others entitled to his regard differed with him. 

He once described himself as Don Quixote the Second, and the description was not altogether unfit. His chivalrous conduct in his duel with General Howe was worthy of that noble if erratic gentleman, and so was his conduct when he remained a year in the dungeon at St. Augustine rather than give a second parol to the British authorities, they having, he considered, violated the first. We have said that meekness was not one of his Christian virtues, but he abhorred vanity and ostentation, and when he died he was buried in St. Philip's churchyard, and by his directions his grave was levelled to the ground — left unmarked by even a mound of earth. 

Such was the man who led the Revolution in South Carolina, and whose memory, though no monument marks his resting-place, is still held in honor and reverence, not only in his own State, but wherever the story is told of the struggle for American independence and liberty.  

1 Josiah Quincy gives this description of Mr. Gadsden in a debate in the Commons' House, at which he was present, in March, 1773. "Mr. Gadsden was plain, blunt, hot, and incorrect, though very sensible. In the course of the debate he used these very singular expressions for a member of Parliament, ' And, Mr. Speaker, if the Governor and Council don't see fit to fall in with us, I say, let the general duty, law, and all go to the devil, sir, and we go about our business.' "