30. The Drive Toward Independence

As we have already learned, although New England was ready for independence from Great Britain, torpor reigned in the Continental Congress through February. Cushing retained his seat until February so that the Massachusetts delegation was not yet under control of the pro-independence faction. And Virginia, the great mainstay of radicalism outside New England, was torn with dissension on this issue; furthermore, the radical leaders, Richard Henry Lee and Thomas Jefferson, were temporarily back home, and the other independence stalwarts, George Washington and Patrick Henry, were serving in the armed forces, so that the majority of the Virginia delegation remaining in Philadelphia were arch-conservatives.

In late February 1776, opinion in the Continental Congress shifted sharply leftward toward independence. The shift was spurred by news of the British Prohibitory Act as well as the Proclamation of Rebellion and the impact of Common Sense, and was quickened by the arrival in Philadelphia of Elbridge Gerry—an arrival which swung the opportunistic Hancock back to the radical line. Furthermore, Lee returned to his seat at Philadelphia to lead the Virginia radicals, and the conservative Virginia oligarch, Benjamin Harrison, shifted into the radicals’ camp, thus giving them the vital majority of their delegation. The Continental Congress then had a probable majority for independence, a majority intensified by the good news of the British evacuation of Boston. On March 20, Congress urged Canada to set up a new government and join the “united colonies,” and significantly, there was no mention of eventual reconciliation. This was a move hinting strongly of independence. The hint became stronger still in the great April decisions, including winning French aid and throwing open American ports to all countries, all of which did everything up to the brink of a declaration of independence itself. Beyond this Congress could not go, for it could not bind the separate colonies to independence. Indeed, some of the provincial delegations were instructed against independence by their constituencies. The final push for independence had first to be taken by the separate colonies themselves.

After New England, the next region where independence came to the fore was the south. Paradoxically, the first virtual authorization came from Georgia, once the most laggard of all the colonies. Reacting to Lexington and Concord against its former indifference, Georgia had established a revolutionary provincial congress and a subordinate council of safety. Urged by the Continental Congress in November to step up military resistance to royal arms, the merchants and artisans of Savannah led the Georgia rebels to establish more formal government by the end of January 1776. The government fulfilled the crucial radical requirements: a unicameral elected legislature to which the executive Council of Safety, the courts, and the militia were strictly subordinate, and the legislature was selected by universal taxpayer suffrage. The president of the Council of Safety, in turn, was strictly subordinate to the council and could not act without its consent. The stalwart militant Archibald Bullock was chosen for this position, and five radicals were soon selected as delegates to the Continental Congress. In April, the Georgia rebels adopted a temporary constitution formalizing this regime, and on April 5 the provincial congress authorized its delegates to vote in whatever way they wished on independence. Thus, Georgia was the first colony to explicitly authorize its delegates to vote for independence, and considering the composition of its delegation, this itself was tantamount to an affirmative vote. By April there were no worries about Georgia’s readiness for independence.

Georgia, however, was very small and one of the least significant colonies. Far more important was North Carolina. As was the case in most of the other provinces in 1775, North Carolina was run by a spontaneous network of county committees capped by a provincial congress. Several factors served to embolden North Carolina opinion in the spring of 1776. One was the rebel triumph of the Battle of Moore’s Creek Bridge on February 27, where the Tories of the province were crushed. Another was the threat of invasion by Gen. Sir Henry Clinton’s fleet off Cape Fear and the inspiration provided by Gen. Charles Lee. Lee’s assumption of an independent southern command that March had a vital military as well as political impact; this scourge of the Tories was as well versed and radical in political warfare as he was in military matters. His arrest of Maryland’s royal governor, the popular Robert Eden, galvanized the struggle; and this was followed by his sending an aide, Gen. Robert Howe, to a convention of North Carolina radicals meeting in Halifax in early April. Chaired by the ordinarily cautious and conservative Samuel Johnston, the political leader of the colony, and influenced by General Howe, the convention took a noteworthy and climactic step: sending positive instructions on April 12 to its congressional delegation to vote for independence and for any necessary foreign alliances. Here was the first frank instruction for independence in America, albeit the instruction was to concur in independence rather than take the initiative. Lee warmly congratulated North Carolina on this promising step.

While the North Carolina instruction for independence passed without difficulty, the April convention for writing a constitution rent the province in bitter ideological conflict. The first local resolution for independence had been made as early as May 31, 1775, in Mecklenburg County in the far western frontier of North Carolina. The Mecklenburg Resolution had declared all British laws and commissions as well as the royal government of the province to be null and void and coupled this early call for independence with the establishment of a county-wide court as the local government elected by universal manhood suffrage. The following August, Mecklenburg County spelled out its comprehensive domestic radicalism in its instructions to its representatives at the provincial congress. They called for suffrage by all free men, the abolition of property qualifications for members of the assembly, and the correction of apportionment in the assembly in accordance with population. Plural officeholding was to be prohibited and local officials elected by the people, and there was to be no oligarchical veto over the decisions of the elected legislature. True to its democratic-liberal position, the county urged disestablishment of the Anglican Church, but they were able to go only so far in their libertarianism, and “pagan or papal” religions were decried as “false” and could not be tolerated in the province.

At the constitutional convention in April 1776, the proindependence forces split sharply on the issue of domestic democracy versus conservatism. A furious struggle ensued over bicameralism, popular election of local judges, and suffrage restrictions, with Samuel Johnston, his brother-in-law James Iredell, and William Hooper leading the conservative forces. A deadlock between the two factions forced postponement of the attempt to write a constitution for North Carolina.

The road to independence was not nearly so smooth in the neighboring colony of South Carolina. Throughout 1775, this province had a formidable bloc of conservatives deeply opposed to any hint of independence. (Even the provincial council of safety, dominated by conservatives, rejected the plea of the radicals to fortify Charleston Harbor against the expected British attack that finally came in June 1776.) In early November, the Continental Congress suggested that South Carolina establish a new government for the duration of the conflict, a suggestion that it had also made to New Hampshire. At the February meeting of the South Carolina Provincial Congress, the conservatives and radicals battled furiously; the right wing, led by the influential planter Rawlins Lowndes, even objected to any new government as a possible step toward independence. Battling for a formal government for that very reason were William Henry Drayton and the great veteran radical leader Christopher Gadsden, who characteristically called for independence publicly. The new government was finally adopted at the end of March, spurred by news of the hard-line British Proclamation of Rebellion and the Prohibitory Act. Even then, the South Carolinians took pains to dissociate this step from independence, and the irrepressible Gadsden was rebuked by the bulk of the provincial congress when he read passages from Common Sense to the assemblage.

The South Carolina constitution of March 1776, was, unsurprisingly, a highly conservative instrument. The representative assembly was to choose an upper house, and both houses would in turn select a third body, the Privy Council, to exert administrative and judicial authority in place of the old Royal Council. Both houses would also choose a president, who would have veto power over the legislature. Before the Revolution, South Carolina had had perhaps the most badly apportioned representation in the colonies: three-quarters of the white population of the province, living in the back country, were unrepresented in the assembly. The new constitution allowed the back country 40 representatives out of 184, but while a considerable improvement, this representation was still weighted outrageously on behalf of the lowland areas. This constitution was severely criticized by the democratic forces for its hasty adoption without explicit approval by the people, for the presidential veto which smacked strongly of the royal prerogative, and for the oligarchic upper house.

The outlook for independence in South Carolina was not bright, but the radical actions of the Continental Congress, the news of the victory at Boston, and the bold move of North Carolina for independence strongly influenced the province. As chief justice of the new government, William Henry Drayton selected a new judicial structure free of royal authority and, at the end of April, he took it upon himself in a charge to a Charleston grand jury to proclaim South Carolina’s independence of Great Britain. He declared that the colony was pursuing its right to revolution against a tyrannical government. Treating the temporary constitution of South Carolina as an act of permanent separation, he defended it as a reflection of the laws of “nature and reason.” South Carolina’s president, John Rutledge, who had shifted to the side of independence along with other monderate conservatives, officially sent Drayton’s printed statement to the Continental Congress. This act was properly received as tantamount to a call for independence by the province itself.

The southern accession to the cause of independence meant little, of course, without the adherence of Virginia, the preeminent province of the South. This province, despite its leadership in the resistance movement to Great Britain, would not be an easy mark. While it had been eager to resist Great Britain and had thrown itself into battle against Lord Dunmore’s raids, its revolutionary bodies were in the hands of thoroughgoing conservative oligarchs who balked strongly at independence, especially Edmund Pendleton, president of the Virginia Committee of Safety, and Robert Carter Nicholas, the committee’s treasurer.

Patrick Henry, leader of the radical forces, was repeatedly humiliated by the Committee of Safety in his post as commander-in-chief of the Virginia militia, and, embittered, he temporarily retired to private life at the end of February 1776. One of the reasons for this treatment of Henry was his belief in an individualistic and democratic army; the conservative Committee of Safety realized in dismay that he “did not seem too conscious of the importance of strict discipline in the army, but regarded his soldiers as so many gentlemen who had met to defend their country, and exacted from them little more than the courtesy that was proper among equals.”*

The attitude of the Virginia conservatives toward independence may be gauged by their vituperative reaction to Common Sense. The eminent planter Landon Carter was at no loss for words to vent his spleen: it was “dangerous,” “absurd,” “scandalous,” “rascally,” “nonsensical,” and “brutish.” Like so many archconservatives since, he raised a “social” argument against Paine’s individualism. Realizing that Paine grounded his doctrine on an individualistic theory of natural law, he wrote: “This man writes for independency, and is under the necessity of stating an independence in man at his creation, when it is evident he must be a social being....”

In early 1776, Pendleton, Nicholas, and the conservative forces of Virginia managed to send as a delegate to the Continental Congress the extremely wealthy planter and merchant, Carter Braxton, of the Carter family, who was the Virginia associate in Robert Morris’ rapidly burgeoning financial empire. Braxton’s mission was to block independence, and this he set out to achieve with great diligence.

During April, however, sentiment in Virginia veered ever more toward independence: the news of the victory at Boston, the bold moves of the Continental Congress, and the decisions for independence by the rest of the south all played their part. Added to this were pressures for independence by Richard Henry Lee and by George Washington through his brother John, the fact of Washington’s being a Virginian being highly important in attracting the patriotism of fellow Virginians. Finally, at the end of March, Charles Lee took up his post at Williamsburg as head of the Southern Military Department and added his determined and fiery personality to the pressure upon the Virginians. Indeed, Lee stayed at Williamsburg largely to rouse the inhabitants and press for independence. His presence was especially needed for the crucial April elections for the critical meeting of the Provincial Convention starting on May 6, elections that hinged on the issue of independence. So overwhelming was the sentiment of the new convention for independence that, on May 15, Virginia unanimously instructed its delegates to urge the Continental Congress to “declare the United Colonies free and independent states, absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain.” Here, significantly, was not simply an agreement, as in most of the other provinces, to concur in any congressional resolution for independence; here was an instruction for actually proposing the final break with Great Britain. Congress was also urged to form whatever foreign alliances or confederation of the erstwhile colonies that might be necessary. The conservatives of the convention bent easily with the wind and endorsed the resolution.

Having opted for independence, the Virginians believed they had to settle on a constitution for the province, and upon its nature furious battles ensued. The internal struggle was not, however, as it was in such provinces as Massachusetts, between Paine-type democrats on the Left and Adams-like adherents to mixed government on the Right. So conservative were all the leaders of Virginia that the debate shifted sharply rightward. The Virginia Left held views similar to the Massachusetts Right. Of its leaders, Patrick Henry hailed Thoughts on Government as fully expressing his own views, and Thomas Jefferson’s doctrines were quite similar. Other leaders of the Virginia moderates were Richard Henry Lee and the eminent lawyer George Mason.

Bitterly opposing these moderate forces were the ultraconservatives, headed by Pendleton, Nicholas, and their chief theoretician, Carter Braxton. Braxton quickly published an Address to the Convention of... Virginia, specifically designed as a reactionary rebuttal to Adams’ Thoughts on Government. The pamphlet brusquely hailed the current British constitution as ideal and urged on Virginia a similar government. Braxton insisted that the popularly elected assembly choose a governor and members of an upper house of the legislature, both of these to hold their positions for life, “that they might possess all the weight, stability, and dignity due to the importance of their office.” In this way, both the governor and the upper house would be totally independent of the people and hence avoid the evils, the “tumult and riot,” of democracy. Braxton was here simply taking the concept of Adams, Jefferson, and Mason of some independent governing bodies, and pushing it to its logical conclusion: life terms for everyone outside the lower house. The Virginia moderates, however, did not see the connection between Braxton’s plan and theirs, and they dismissed his pamphlet as “silly” and “contemptible.”

Patrick Henry, leading the moderates of the committee appointed to draft a Virginia constitution, despaired for a time of triumphing over the “great bias to aristocracy” among “most of our opulent families.” When he poured out his worries to his friend John Adams, Adams answered with an eloquent and thundering denunciation of Virginia’s ultraconservative and highly aristocratic “nabobs”:

The dons, the bashaws, the grandees, the patricians, the sachems, the nabobs,... curse, but all in vain. The decree is gone forth, and it cannot be recalled, that a more equal liberty than has prevailed in other parts of the earth, must be established in America. That exuberance of pride which has produced an insolent domination in... a very few, opulent, monopolizing families, will be brought down nearer to the confines of reason and moderation....

Dominating the committee drafting the Virginia constitution was Henry’s right-hand man in leading the Virginia moderates, George Mason. Mason, who had drafted the Fairfax Resolves put through the Fairfax County meeting by Washington, had played an important role in leading the revolutionary forces in Virginia. The constitution, as submitted by the committee and adopted unanimously on June 29, signalled a victory for the moderates: An elected lower house would consist, inequitably, as in colonial days, of two members from each county; an upper house, or Senate, would also be elected annually by the people; a governor would be elected annually by joint ballot of both houses of the legislature, as would a privy council, or Council of State, to assist the governor. To check entrenchment of an executive in power, no more than three terms in succession were allowed a governor, and he could not act without the consent of the Privy Council. Superior judges were to be elected by both houses, but county judges and other officials were to be appointed by the governor and were to hold office on “good behavior,” i.e., virtually for life. Both the gubernatorial appointment and the life terms were holdovers from colonial rule.

The proportion of two members from each county was palpably weighted in favor of the planter oligarchy of the Tidewater counties, which had larger plantations and fewer eligible voters than the piedmont and valley areas. Thus, tiny Warwick County in the Tidewater, with a few hundred voters, had a delegation in the lower house equal to large western counties containing a few thousand voters each. As time went on and emigration continued westward, this disproportion would grow still greater. Virginia’s restrictive qualifications for voting were retained intact, despite proposals by Mason and Jefferson to broaden the suffrage.*

Due to a determined fight by the Henry forces, the power of the governor was set as subordinate to the legislature, only the House could originate legislation, and the Senate could not amend an appropriations bill. In selecting the governor, the moderates put up Patrick Henry, while the archconservatives selected the virtually outright Tory, Thomas Nelson. Henry was elected by a vote of sixty to forty-five; the Council of State chosen to aid him was dominated by the conservatives.

As a preamble to the constitution, the provincial convention inserted a list of bitter charges against the person of King George III, sent by Jefferson from his post in the Continental Congress. On the basis of these charges levelled squarely and boldly against the king, Virginia repeated its assertion of independence and declared its connection with the British Crown totally dissolved.

If the Virginia Left was middle-of-the-road on the structure of government, the same caution and moderation were not shown on another critical struggle waged in the provincial convention. In one of the monumental libertarian advances of political history, the Virginia Left decided to enact a Declaration of Rights committing themselves, at least in theory, to protect and not to invade the natural rights of each individual. Thus was born the monumental concept of a bill of rights designed to prevent government from invading the rights of the individual. On this issue the Virginia Left proved to be radical indeed.

The convention had assigned to the committee with the job of drawing up a declaration of rights the man best suited to the task, George Mason, who threw himself into the work with a will, aided by Thomas Ludwell Lee. In an effort to prepare the climate for the declaration, numerous county petitions were circulated, vaguely calling for democratic and liberal measures.

Drafted almost completely by Mason, the Declaration of Rights was introduced by the committee and modified by the convention. Some of the changes strengthened the declaration, but the central struggle grew out of the determined attempt by the archconservatives led by Nicholas to weaken or block it altogether. Patrick Henry’s disquieting defection on forbidding ex post facto laws and bills of attainder cut these clauses from the declaration, but the major battle was waged over its magnificent first clause. Mason had there written “that all men are created equally free and independent, and have certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and attaining happiness and safety.” Here, in a scintillating and compact form, was the essential statement of the radical libertarian theory of natural rights.

The conservatives, possessed of the clarity given to them by their vested interests, saw immediately the main danger of this clause. If every person has a natural right to be equally free and independent, what happens to the institution of slavery on which rested the power and pelf of the Virginia planter aristocracy? Undoubtedly, Mason knew what he was about, for as early as 1765 he had criticized the institution of slavery on moral and economic grounds. Nicholas and his “set of aristocrats” and “masters” (in the words of Thomas Ludwell Lee) fought the clause fiercely. To declare all men created free and independent would invite a slave revolt, they argued. The conservatives were able to force modification of the clause: “natural” was excised from “inherent... rights,” and “God and Nature” was excised from another important clause. “Namely” was substituted for “among which are” to restrict the scope of individual rights. But most important, the clause “when they enter into a state of society” was inserted between “of which” and “they cannot.” This made it possible for the conservatives to rest content with interpreting natural rights as belonging only to those men who had “entered into a state of society.” Clearly, the slaves had never been given a chance to make this entrance.*

Despite these modifications, the Virginia Declaration of Rights, unanimously adopted by the convention on June 12, 1776, is one of the great documents in American history. It set the pattern for all future state and national—and foreign—bills of rights, and stamped the libertarian doctrine of natural rights, at least in theory, upon the American Republic. The preamble of the declaration stated that the representatives of the people of Virginia assert a body of rights which “do pertain to them, and their posterity, as the basis and foundation of government.” Following the first clause, the declaration included democracy (“that all power is [originally, ’by God and Nature’] vested in, and consequently derived from, the people; that magistrates are their trustees, and servants, and at all times answerable to them”); the right of revolution (when government fails to secure or violates proper aims, “a majority of the people hath an indubitable, inalienable, and indefeasible right, to reform, alter, or abolish it....”); no right of special or hereditary privileges; separation of the judiciary from the other functions of government; rotation of office in the legislative and executive branches; free and frequent elections; no taxation without representation; the traditional rights of a defendant to know the nature of the charges against him, to confront his accusers, to have a speedy trial by jury which must be unanimous to convict him of a crime, not to be forced to give evidence against himself, and to be free of excessive bail and cruel or unusual punishments; the prohibition of general warrants (searches and seizures by government must be named in advance in special warrants and supported by advance evidence); freedom of the press (“one of the great bulwarks of liberty”); no standing armies (which are “in time of peace... dangerous to liberty”); a people’s militia as the proper form of defense; “strict subordination” of the military to the civil power; and freedom of religion (religion “can be directed only by reason and conviction, not by force and violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience....”). On this last point, the phrase “free exercise of religion” had been substituted for a far weaker stress on religious toleration at the suggestion of Mason’s young colleague on the drafting committee, James Madison.

Emboldened by the march of southern opinion and action as well as by its own deeds of the preceding months, the Continental Congress in mid-May took the penultimate steps toward a final state of independence. On May 10, led by John Adams and Richard Henry Lee, it resolved to recommend to those legislatures of the “United Colonies” which had not done so to adopt suitable new governments of their own. No phrases hinting at eventual reconciliation with Great Britain appeared in this resolution, as in the advice to New Hampshire six months before, but it was still sufficiently bland to win the support of the conservatives in Congress.

The big battle was waged immediately afterward, over the preamble to the resolution. Drawn up by John Adams and backed by Richard Henry Lee, the preamble began with a list of grievances against Great Britain directed against the king as well as Parliament, and then concluded with this crucial and devastating passage:

It appears absolutely irreconcilable to reason and good conscience... now to take the oath... necessary for the support of any government under the crown of Great Britain, and it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies....

Here the gauntlet was hurled at Great Britain; this preamble, attached to a call for new government, was nothing less than a de facto declaration of independence. Opposition to the preamble was led by James Duane of New York, Carter Braxton, and the brilliant young James Wilson. Wilson warned prophetically that passage of the preamble would put his province of Pennsylvania into an anarchic “state of nature” and dissolve its existing proprietary government.

Congress, however, overrode the objections of the conservatives and adopted the preamble on May 15. The vote has been reported as six or seven to four, and assumedly among the four colonies in the negative were Pennsylvania, New York, and Maryland. Adams was understandably jubilant, writing that Congress had passed “the most important resolution that ever was taken in America,” one that was “total absolute independence,” “independence itself.”

* Quoted in Moses Coit Tyler, Patrick Henry (Ithaca, N.Y.: Cornell University Press, 1962), p. 187.

* In their desire to demonstrate that (a) colonial Virginia was thoroughly democratic except for the impositions of Great Britain, and (b) that the American Revolution was in no sense an internal social revolution, Robert E. and B. Katherine Brown become mired in a grave inner contradiction. If, for example, representation was only undemocratic because of British coercion, then how is it that this imposition was cheerfully continued in the new constitution by the supposedly democratic Virginia leadership? One cannot pin the responsibility for aristocracy in colonial Virginia upon Great Britain, insist (with some justice) that there was no internal revolution in Virginia, and then conclude that Virginia was democratic before and after the revolution!

In his brilliant review of the Browns’ work, Stephen Saunders Webb writes that they “insist that the prevalence of appointive office in Virginia was owing to ’imperial’ control rather than to aristocratic dominance. They fail to consider that the appointive system was not significantly altered by the Revolution, which eliminated imperial control.” As for the absence of an internal revolution in Virginia, this is “a fact which they attribute to a general acceptance of democracy. It is at least as logical (and more consistent with the fact that almost every revolutionary leader in Virginia was an aristocrat) to conclude that this remarkable quietude was the result of a continuing aristocratic hegemony....” He justly adds that to take such quietude and lack of widespread public protest as a sign of democracy would mean that “Louis XIV’s France was not undemocratic either.” See Stephen Saunders Webb, “Review of the Browns’ Virginia: 1705–86,” Wisconsin Magazine of History (Autumn 1964), pp. 63–64; Robert E. and B. Katherine Brown, Virginia 1705–1786: Democracy or Aristocracy? (East Lansing, Mich.: Michigan State University Press, 1964).

* See Robert A. Rutland, George Mason (Williamsburg, Va.: Colonial Williamsburg, 1961), pp. 53ff.