PART VI The Political History of the United States, 1776–1778 44 The Drive for Confederation

The most important political fact of the years after independence was the movement toward a formal confederation by the revolutionary states of America. The radicals were scarcely enthusiastic about creating any sort of permanent central government; but their innate distrust of all government, especially large central government necessarily removed from checks by the people, was partially neutralized by their overriding desire to win the Revolutionary War. The myth abounded that formal confederation was necessary to win the war, although the war would be virtually won by the time confederation was finally achieved. The war was fought and won by the states informally but effectively united in a Continental Congress; fundamental decisions, such as independence, had to be ratified by every state. There was no particular need for the formal trappings and permanent investing of a centralized government, even for victory in war. Ironically, the radicals were reluctantly pulled into an arrangement which they believed would wither away at the end of the war, and thereby helped to forge an instrument which would be riveted upon the people only in time of peace, an instrument that proved to be a halfway house to that archenemy of the radical cause, the Constitution of the United States.

The conservatives, on the other hand, suffered from no such hesitation. Those flexible conservatives who went along reluctantly with independence rather than becoming outright Tories, saw in a strong new central government the reconstitution of a powerful State—a British imperium without Britain. Here, they hoped, would be a strong central State which they could expect to control—a State which could bring back mercantilism and monopoly privilege with even greater benefits to themselves. As Merrill Jensen puts it:

The conservatives who had opposed the Revolution and who went along with it only when they saw no alternatives, as well as many who were not opposed to independence, wanted supreme political authority placed in a central government which could exercise a coercive power over the states and their citizens.... They valued the British connection for the very definite advantages it gave the ruling classes of the colonies. When faced with the fact of independence, they demanded the creation of a government which would in some way function as a bulwark of conservative interests: in other words, as a substitute for the British government.*

The radicals, of course, were engaged in fighting a war against centralized government, its taxation, restrictions and privileges, and were not about to favor establishing an equivalent at home to what they were fighting to eject from American shores.

And what of the revolutionary radical principle of locating sovereignty in the people themselves rather than in the “legitimate” government? Would not this be an insuperable barrier to the aims of the Right? But here the able conservatives proved shrewd indeed; they managed to drop quickly the belief in the sovereignty of the crown, and demagogically to incorporate the radical doctrine of popular sovereignty for their own ends. Indeed, they cynically appeared to be more democratic than the radicals; for they argued that only a strong national government could really represent all the people. This contrasted to the radicals’ distrust of central power and their doctrine that the central government should only be a limited federation of sovereign states. In the name of the “people,” the conservatives called for the crushing of the powers of the separate states and the aggrandizement of national governmental power. Thus, for the first time on the American scene—but by no means the last time—the Right found the ability to use the language of popular democracy to befuddle the masses, to win their allegiance to strong central government, mercantilism, and monopoly, and away from individual freedom.

The drive for a national State came primarily from the financial oligarchs of the Middle States, and especially from Robert Morris and his Pennsylvania satellites and the allied oligarchs of New York. There were two major reasons for the greater zeal for national aggrandizement by these men than among the conservatives of the South. First, was the former’s far shakier rule at home, especially in New York and Pennsylvania; and second, was the greater economic and financial stake in the central government than that among the planters of the South. For example, Morris and his cohorts had already made millions from the centralized war effort alone.

Until a formal governmental structure should be achieved, the conservatives tried their best to aggrandize the power of the existing Continental Congress at the expense of the citizens of the several states. Leading in this attempt was James Wilson of Pennsylvania, Robert Morris’ ally and chief theoretician. Scorning the history of Congress, Wilson boldly declared, as early as August 1776, that Congress “really” represented all the American people and was thus superior to the states; indeed the states, declared Wilson, had really been dissolved into one large state. But though Pennsylvania’s Benjamin Franklin, Dr. Benjamin Rush—a centrist shifting steadily rightward—and the now conservative John Adams argued similarly, their repeated efforts at centralization were all unsuccessful. Thus, in early 1777, Wilson argued that Congress had to oppose a convention of New England states that had met the previous December to discuss plans to prosecute the war. Adams, Rush, and he asserted that an unauthorized meeting would virtually usurp the alleged powers of Congress. But the radicals fought back powerfully. Sam Adams acidly pointed out that only tyrants opposed the right of the people to assemble; and Richard Henry Lee insisted that there was no confederation, and therefore there could be no infringement of law. Congress finally agreed that it had no power to prohibit or punish such regional meetings.

Another fierce struggle about enhancing congressional power over people came in early 1777; it was waged over a measure authorizing Congress to empower local officials to arrest deserters without participation by the state governments. Led by James Wilson, Congress at first passed this law, but it was later forced to rescind. Just arrived in Congress, one Dr. Thomas Burke of North Carolina, an Irish-born physician, quickly assumed the leadership of the radical libertarian forces. He charged that this assumption of power by Congress would “thereby endanger the personal liberty of every man in America.” He pointed out that such measures would give Congress “a power to act coercively... against the subject of... every state” and dissolve state institutions. It would have “power unlimited over the lives and liberties of all men in America.” At the same time, Burke and Lee also managed to block an attempt by Wilson and John Adams to vote on a return of Congress to Philadelphia by vote of individual congressmen, rather than by states—another attempt to fuse the states into “one common mass,” as Adams had revealingly phrased it. If Congress were thus allowed to change its own rules—of voting by states—Burke declared, it would then be “bound by no rule at all and only governed by... an arbitrary tyrannical discretion.” Burke’s threat to withdraw should Congress thus change its rules forced the conservatives to retreat once again.

In a letter to North Carolina Gov. Richard Caswell, Dr. Burke penned a magnificent and prophetic analysis of the drive for power on the part of the conservatives, as well as other members of Congress:

The more experience I acquire, the stronger is my conviction that unlimited power cannot be safely trusted to any man or set of men on earth. No men have undertaken to exercise authority with intentions more generous and disinterested than the Congress.... [How] could individuals blessed with peaceable domestic affluence... endeavor at increasing the power with which they are invested, when their tenure of it must be exceedingly dangerous and precarious...? This is a question I believe cannot be answered but by a plain declaration that power of all kinds has an irresistible propensity to increase desire for itself. It gives the passion of ambition a velocity which increases in its progress, and this is a passion which grows in proportion as it is gratified....

These and many other considerations make me earnestly wish that the power of Congress was accurately defined and that there were adquate check provided to prevent any excess....

Even thus early men so eminent as members of Congress are willing to explain away any power that stands in the way of their particular purposes. What may we not expect some time hence when the seat of power shall become firm by habit and men will be accustomed to obedience, and perhaps forgetful of the original principles which gave rise thereto. I believe, Sir, the root of the evil is deep in human nature. Its growth may be kept down but it cannot be entirely extirpated. Power will some time or other be abused unless men are well watched, and checked by something they cannot remove when they please.

The main thrust of the conservatives for greater power was not to be through the existing Congress, but through the formal creation of a far stronger one. In a kind of two-pronged attack, efforts were made in this regard at the same time as the push was on to centralize power in Congress. Thus, when Richard Henry Lee, in June 1776, introduced a resolution for confederation as a corollary to his resolve for independence, the conservatives were able to obtain overwhelming superiority in the Congressional committee of thirteen to draw up a plan for confederation. Chairman of the committee was the archconservative John Dickinson, who submitted a draft of “Articles of Confederation and Perpetual Union,” on July 12. Dickinson’s draft was heavily influenced by a plan of confederation that Franklin had prematurely circulated in the previous year. A veteran pioneer of the idea of a strong central government over the American colonies, Franklin now outlined a similar plan with the British imperium left out. The crucial consideration was the locating of sovereign power in the national Congress; delegates would vote individually and be chosen by population, and Congress would have unchecked power over war, peace, and foreign affairs, and would seize control over the untapped and promising lands west of the Appalachians. Moreover, Congress would have all law-making powers “necessary to the general welfare,” and that indefinable phrase gave carte blanche to legislative whim. Franklin provided for a permanent executive council, chosen by Congress but its powers were not to be violable by that body. Only one vitally important power essential to sovereignty was omitted: the taxing power, against which, after all, the Americans were in direct revolt.

During 1775, the colonies had not yet been ready for independence or for federation, but now Dickinson drew heavily on Franklin’s draft for federation. Dickinson, too, provided for the national sovereignty in Congress, its powers to be sweeping, and for a permanent executive council, but his draft was a bit less permissive than Franklin’s. He set forth specifically the powers that could be wielded by Congress, not leaving them limitless. He also provided that each state, as in the existing Congress, have one vote, thus granting an important concession to the states. Furthermore, whereas Franklin would have had all matters decided by simple majority vote, Dickinson conceded that certain fundamental issues, including war, coinage, and apportionment of revenue, would require the vote of nine states. Although a concession to radicalism, it was still a far cry from the unanimity that had been needed for independence.

The powers left to the states in the Dickinson draft were negligible. Treaties specifically overrode state tariffs, and the Articles of Confederation overrode state internal police power. Furthermore, the draft strongly implied that all powers but the overridable internal police power were granted to Congress, rather than to the states. Congress would also have the power to settle disputes between states. The one vital restriction remaining upon Congressional power was that it would not be allowed to levy taxes; these would be levied by the states, and the revenue supplied by them to Congress.

Three specific clauses of the Dickinson draft proved to be the focal points of raging controversy within the Congress; all involved the central problem of the conservative drive for a unitary national state and strong central government. One struggle was an attack from the right, from those who wanted to restore the Franklin idea of voting by individuals elected proportionately to population rather than by states. The conservatives were bolstered by the delegates from the large states, who, of course, tended to back an amalgam by population in which they would exert far more influence than in equal voting by states. The attack from the right was led by Franklin, aided by John Adams and Benjamin Rush. Leading the small state radicals was the Reverend John Witherspoon, president of Princeton College, who insisted that the confederation should not be a national State but a federal union of sovereign states. Finally, after a furious battle, equal voting by states prevailed over the stubborn objections of the majority of the Virginia delegation, John Adams, and Arthur Middleton of South Carolina.

If voting in Congress were to be equal by states, how would the expenses of the central government be apportioned among the states, which would undertake to supply the revenue? The sensible solution of the Dickinson draft was to requisition funds according to the population of each state. Here again, the attack was from the right, specifically from the slave states of the South wishing to keep their slaves untaxed. They proposed requisition on the basis of the property value of lands and improvements. This was a cunning attempt to foist the burden of revenue upon the liberal and relatively slaveless New England states, where land was intensively cultivated and improved, and therefore of a relatively higher value than in the other states. While the original draft prevailed during 1776, the final vote in late 1777 was a victory for the southern view. The unanimous vote against lands and improvements as the basis for calculating revenue cast by the four New England states was overcome by a solid phalanx of five votes from Maryland, Virginia, the Carolinas and New Jersey. (Pennsylvania and New York’s two delegates were evenly split.)

The most bitter of the three controversies around the Dickinson draft was over its proposal to nationalize all the western lands: to vest all the lands beyond the boundaries of the thirteen states in the ownership of Congress. The alternative was to allow them to remain in the hands of Virginia, which had vague charter claims to all land westward to the Mississippi.

The radicals opposed the Dickinson draft in reaction to the imposed jurisdiction of a remote central government in which the public had no direct participation. More important, they realized that the drive for nationalization of the western lands came from long-associated groups of highly influential land speculators, whose grandiose claims to western territory had already been spurned by Virginia, and who counted on the national government to grant them their demands. If Congress ultimately would not do so, they had nothing to lose. Many historians have treated this conflict as being between the “landless” states favoring nationalization, against the landed in favor of keeping their claims; yet two of the six “landless”—New Hampshire and Rhode Island—showed no interest whatever in nationalization. It was from Maryland, Pennsylvania, Delaware, and New Jersey, home of the key groups of speculators in western land, from which all the pressure came. Before the Revolution, the land speculators had looked to the British government to establish their monopolistic claims; now they turned equally naturally to the Continental Congress.

It is not at all coincidental that John Dickinson hailed from Pennsylvania; that Franklin, whose plan had envisioned Congressional control of the western lands, was both a Pennsylvanian and a land speculator; and that the chief defenders of the land nationalization clause in Congress were Samuel Chase of Maryland, a member of the Illinois-Wabash Co. of western-land speculators, and James Wilson of Philadelphia, the president of the same company.

The speculators were driven to the Dickinson draft by Virginia’s actions during late June 1776. The Virginia Convention had formally asserted her jurisdiction to all her grandoise charter claims to western land; it had condemned all unauthorized purchases of land from the Indians; and finally, upon petition of the settlers, it guaranteed to the actual settlers the right to preemption of their land. This resolution of May 14 was the first legislation in American history to assert the rights of the settler. It was this Virginia claim, and the guarantee to the settlers, that led the land speculators to try for nationalization of the western lands.

The Dickinson draft, completed less than a month after Virginia’s action, granted to the land speculators more or less all of their goals of nationalization. Congress was given the sole power to decide state boundaries and to purchase lands beyond these boundaries from the Indians, thus implying the existence of American lands outside the bounds of any state. It was also specifically given sole and exclusive power to limit the bounds of state claims to western lands.

The Virginians reacted to the Dickinson draft with understandable bitterness; after all, one of the grievances against Great Britain had been its meddling and authority over the western lands. Richard Henry Lee and Thomas Jefferson led the attack, while Samuel Chase and Thomas Johnson of Maryland and James Wilson led the nationalizers. Wilson even tried to specify and strengthen the Congressional powers over the lands, but each of the proposals was roundly defeated. Finally, by October 1777, the landed states had triumphed. Lee successfully moved to insert in the Articles a clause to the effect “that no state shall be deprived of territory for the benefit of the United States.”

For his part, Thomas Jefferson was quite clear that his resistance to land nationalization was founded not on the territorial claims of Virginia but on his deep-seated belief in justice to the settlers. As his biographer puts it:

In his [Jefferson’s] mind this was not primarily a question of rivalry between one state and another.... His major concern was not for the land but for the people who settled on it; and at this time he believed that the interests of the pioneers could be better safeguarded by states than by Congress, which seemed more susceptible to the pressure of speculative land companies. He was deeply sympathetic with squatters, but had little patience with absentee groups who came seeking special favors. What he most relied on for protection of individuals was local self-government,... favoring the early development of it in Virginia’s outlying lands, but until he could be reassured about the attitudes of Congress toward the small landholders, he preferred to depend on the states to protect them....*

Leading the drive for land nationalization were three large and international companies of land speculators: the Indiana Company, which claimed an enormous tract south of the Ohio, virtually consisting of what is now West Virginia; and the Illinois and Wabash companies, claiming a still vaster region, including much of present day Indiana and Illinois. All these enormous tracts were in Virginia-claimed territory. Heavily and prominently involved in the Indiana Company were: Robert Morris; the Wharton brothers, Philadelphia merchants and financiers; William Trent, brother-in-law of George Croghan; the Franks and Gratz families, international Jewish merchants, based in Lancaster, Pennsylvania and Philadelphia; Benjamin Franklin, his son William, and Benjamin’s son-in-law Richard Bache; and the Tory, Joseph Galloway. Archconservative and nationalist James Wilson was in the pay of the Indiana Company, and Thomas Wharton was selected by the speculators to distribute shares of their stock in bribes to members of Congress. The huge Illinois Company grant included virtually the same crew: Trent, the Franklins, the Whartons, Croghan, and Galloway. Patrick Henry, who later broke angrily with the land speculators, was at the time either in the pay of the Illinois Company or a direct participant in it, and accordingly favored the nationalization plan. The Wabash Company, claiming nearby lands, included the Gratz-Franks group and the entire top leadership of the Maryland oligarchy: Samuel Chase, Governor Thomas Johnson, former Governor William Paca (the brother-in-law of Robert Morris), and Charles Carroll of Carrollton. No wonder that Maryland fought fiercely for nationalizing the western lands! In late 1778, after the American forces had wrested the Illinois country from the British, the Illinois and Wabash companies merged their interests into one powerful force, which would then include Silas Deane and Conrad Gérard, French minister to the United States.

At about the same time, 1774–76, Virginia won a successful three-cornered conflict of its own with settlers and with speculative land companies. Its most important land struggle involved pioneers who had trekked across the Appalachian Mountains to settle on lands claimed by Virginia south of the Ohio River in what is now Kentucky. In 1774, Lord Dunmore’s royal Virginia troops had driven the Shawnee Indians out of the Kentucky region (“Dunmore’s War”), and settlement across the mountains promptly ensued. At first, the settlers simply regarded themselves as the extreme western end of Virginia’s Fincastle County. Very quickly, the new settlers began to imbibe the very ideas of self-government for occupiers of new land that the Americans in general were using against Great Britain. The arguments were clearly applicable to the Kentucky settlers as against the remote government of Virginia.

Into this potentially explosive situation stepped an ambitious group of land speculators headed by Judge Richard Henderson of North Carolina. They formed the Transylvania Company in January 1775, and soon bribed the Cherokee tribe to come together and cede the company the large land area southwest of the Kentucky River and north of the Cumberland. Since the Cherokees, ensconced in the mountains to the south, made no use of this land anyway and didn’t really own it, they were happy to consent to this “sale” at the “Treaty of Sycamore Shoals” in mid-March. To head company operations in the Kentucky lands, Henderson hired the celebrated frontiersman Daniel Boone, who hacked a trail (the Wilderness Road) westward across the Cumberland Gap in the mountains.

In the next step of his ambitious scheme, Henderson persuaded the fewer than 200 settlers in Kentucky to send eighteen delegates to a convention at Boonesborough, on the Kentucky River, at the end of May 1775. Demagogically playing on ideas of independence and self-government, he eloquently proclaimed “that all power is originally in the people,” and the delegates unanimously decided to establish Transylvania as an independent colony, free of all eastern ties. The convention established new courts, militia, and scales of punishment for the new Transylvania, and established freedom of religion. Congress was petitioned to recognize the new region as a separate colony.

But Transylvania was not destined to remain an idyl for very long. Henderson quickly began to use its new-found independence to mulct the settlers unmercifully. He raised the price of land he charged to settlers and imposed quitrents as stiff as those charged in Virginia. The unfortunate settlers soon came to regard Henderson’s Transylvania scheme as a far worse threat than Virginia. Actually, the Kentucky settlers would have preferred to be independent and truly free of both Transylvania and Virginia. But for remote settlers facing an Indian threat, this was not a very realistic hope. Led by the citizens of Harrodsburg, the settlers turned to the idea of reincorporation into Virginia. In a convention held at Harrodsburg on June 6, 1776, the delegates selected the young frontiersman George Rogers Clark and a young attorney, John Gabriel Jones, to be their delegates to apply for representation in the Virginia assembly as a new western county.

Their trip to the Virginia governmental seat at Williamsburg was a truly heroic one, for they ran into the newly erupted Cherokee War. In early July 1776, the prowar wing of the Cherokees, led by the fiery young chief Dragging Canoe, erupted to attack frontier settlements from southern Virginia to northern Georgia. Their timing was remarkably bad, for the Tory risings in the South, as well as the British attack upon Charleston, had already been defeated, and the militia of four southern states, especially of the Carolinas, were able to devote full attention to the Cherokees. Spurred on by handsome government payments for every Indian scalp, they had brutally and systematically burned and devastated every inch of Cherokee-cultivated land and property by August. Had the Cherokees waited another year to coordinate with Iroquois attacks, or to unite with other Indians, their war might have been far more successful. As it was, Dragging Canoe’s militant policy proved to be merely adventurist. In addition, his braves did not always bother to make a distinction between Tory and Whig settlers, and only succeeded in deeply alienating many southern Tories from the British cause with which the Cherokees were allied.

Finally reaching Williamsburg after their travail, Clark and Jones presented their case to the Virginia assembly in early October. There they argued against Henderson, who was aided by those apathetic to the west country and by Fincastle County, which stood to lose its claimed jurisdiction over Kentucky. But Kentucky was backed by Gov. Patrick Henry, George Mason, and Thomas Jefferson, who was always an eloquent friend of the settler. Finally, on December 7, 1776, Virginia voted to grant Kentucky admission as its westernmost county. The Henderson land clique had been totally foiled.

* Mérrill Jensen, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774–1781. (Madison, Wisc: University of Wisconsin Press, 1962), p. 163.

* Dumas Malone, Jefferson the Virginian, p. 244.

45

The Articles of Confederation

We have just seen that in the three most important specific controversies waged in Congress in framing the Articles of Confederation, the Dickinson draft was in one instance altered leftward (preventing Congress from seizing control of the western lands), in another, rightward (changing the basis of taxation from total population to property values), and in another, remained unchanged (rejecting a rightward shift from equal voting by state to voting by individual Congressmen representing population). Generally, however, the radicals were not awakened to the revolutionary (or rather, counter-revolutionary) significance of the centralizing Dickinson draft until Dr. Thomas Burke arrived to assume the radical leadership of Congress in the spring of 1777. Burke realized the sweeping centralization implicit in the Dickinson draft, and he saw that the third article, by reserving to each state the power of internal police, “consequently resigned every other power” to the central government. To block this, he proposed as a substitute a crucial amendment, which, as Article Two of the completed Articles of Confederation, formed the bulwark of state sovereignty against the pretensions of centralized power. In its final form, this Article read: “Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” This amendment shifted sovereignty and reserved powers from Congress and the central government to the states. Fighting hard for his amendment against the opposition of James Wilson and, surprisingly, Richard Henry Lee, Burke overcame initial reluctance and was finally able to swing eleven states to his support, leaving only Virginia in opposition.

Furthermore, the Dickinson draft had created a council of state, functioning as a permanent executive body with irreducible powers. This provision for a virtually independent executive was excised from the Articles, and replaced by a “Committee of the States,” an arm of Congress which would have no substantial power. Indeed, the completed Articles, vigilant of any buildup of executive tyranny, expressly forbade Congress from vesting in the committee any power to make war or peace, to regulate money or coinage, or any of the other fundamental Congressional powers.

The Dickinson draft had prohibited the states from levying any duties or tariffs contradicting the provisions of any treaties made by Congress. This was amended on the floor of Congress, however, to provide that no treaty could impair the power of any state to prohibit imports or exports, or to impose its own tariffs or duties, provided that foreigners and its own citizens were subject to them equally.*

The Articles of Confederation were completed by Congress on November 15, 1777, and submitted to the several states for the required unanimous ratification. While the radicals had succeeded in pulling much of the centralist teeth, the Articles were still a momentous step from the loose but effective unity of the original Continental Congress to the creation of a powerful new central government. To that extent, they were an important victory for conservatism and centralization, and proved to be a halfway house on the road to the Constitution.

The first few articles of the “Articles of Confederation and Perpetual Union” were sensible agreements among the several states, rather than the erection of a central government. Thus, apart from Article Two’s declaration of state sovereignty and reserved powers to the states, the states pledged mutual defense, mutual privileges and immunities among the citizens of the respective states, and full faith and credit to the acts and judicial proceedings of the other states. Thereafter central power began to assert itself. While the prohibition on any state’s engaging in its own foreign diplomacy, treaty or war seemed sensible, the prohibition against any state’s having an army or navy not approved by Congress was an important seizure of the power of force by Congress. So too was the compulsion on each state to maintain a militia, and the requirement that each state supply revenue to Congress in proportion to its land values. (Congress, however, had to rely on the states to meet these requisitions.) So also was the power vested in Congress to be the final court of appeal on all boundary or jurisdictional disputes between states or land grant disputes involving two or more states. Moreover, Congress acquired the sole power to regulate the alloy and weight of all coins, whether minted by itself or the states; to establish post offices and exact postage; and to appoint all naval officers and all army officers over the rank of colonel, and to direct their forces. Congress also had the power to requisition soldiers from the states in proportion to the number of their white inhabitants (thus privileging slave states, who did not have to supply soldiers in proportion to their slaves), and to borrow money or emit bills of credit (i.e., paper money).

A key clause, Article Twelve, provided that all previous debts and bills of credit emitted by Congress would be deemed payable by the new government, thus setting a precedent for a compulsory visiting of the debts of the past upon future generations. The union, too, was made compulsorily perpetual, with unanimity of every state legislature, as well as approval by Congress, required for any alteration of the Articles of Confederation.

For such fundamental decisions as declarations of war, issue of letters of marque (also reserved solely to Congress), making treaties, coining or regulating money, voting common expenses, issuing bills, borrowing money, or raising armed forces, the vote of nine states, voting equally by states was required. This provision completely abandoned the requirement of unanimity which had been needed to declare independence or to ratify the Articles themselves. Unanimity would now only be needed to change the Articles.

Each delegate to Congress was to be elected annually by the state legislatures. The democratic and libertarian belief in rotation in office as a vital check upon the building up of entrenched political power was represented in the prohibition, in the Articles, against any Congressional delegate serving for more than three years out of any six. Moreover, he was prohibited from holding any central government office while serving as delegate.

The Articles were not exactly received with huzzahs; rather, they were greeted quietly and dutifully, as a needed part of the war effort against Britain. One of the keenest critiques of the Articles, as might be expected, came from Thomas Burke, who warned that, under cover of the war emergency, eager power-seekers were trying to impose a central government upon the states. He urged the North Carolina legislature not to ratify: not only no confederation, but no Congress, would be necessary after the war; and, in any case, each state must have the right to control all the soldiers within its own territory. In response, the North Carolina legislature, controlled by radicals, expressed strong criticism of the excessive central power over the states and ratified only part of the Articles; it was only at the end of April 1778 that North Carolina consented to ratify in toto.

In the South Carolina Assembly the drive against the Articles was led by the radical leader, William Henry Drayton. He warned that the central government would seize effective sovereignty under the Articles, and attacked their vagueness and ambiguity. He also warned that constitutional precision was vital, for otherwise a consideration of “the spirit of the laws” would provide a ready route for Congressional assumption of power in the future. He effectively quoted the great Italian jurist Beccaria to the effect that the “spirit” of the law would be found in the necessarily fluctuating and subjective interpretations, and in the whims and crotchets and interests of the Congressmen and other concerned people at the time. He also attacked the abandonment of unanimity, and proposed a vote of at least eleven states to be needed for fundamental decisions. South Carolina’s ratification included numerous amendments restricting central power, including denial of Congressional jurisdiction over interstate disputes. However, South Carolina, too, finally ratified the Articles in early 1778.

In New Hampshire also, the Articles were under heavy fire from the left. Town meetings considered the proposal throughout the state, and there was general dissatisfaction at real estate values as the basis of taxation. Some towns also urged that a declaration of war be required to be unanimous among the states. However, the New Hampshire legislature passively ratified the Articles in March 1778. Massachusetts followed a similar procedure. The towns suggested many valuable changes restricting central power, among them a required vote of eleven states for important decisions, and requiring that decisions on war and peace be left to the people of the states rather than to Congress. And yet the Massachusetts General Court meekly ratified the proposed Articles of Confederation.

Connecticut offered an amendment to the Articles prohibiting any standing army under Congress in time of peace, and New Jersey partly agreed. But again, these states soon fell into line.

But while all other states soon ratified (New Jersey and Delaware at the turn of 1778), Maryland, run by a tightly knit little oligarchy of land speculators, persisted in holding out against ratification unless the western lands were nationalized. As a consequence, the Articles of Confederation were not to be ratified and go into effect until 1781, when the Revolutionary War would be all but over.

* Jensen expresses surprise that such centralist leaders as Robert Morris, James Duane, and William Duer supported this “states’ rights” amendment. Rather than lamely trying to explain this vote as a concession to New York and Pennsylvania radicals, however, it should be clear that these archconservatives did not at this point wish to give up the power of the states to levy tariffs. Contrary to Jensen’s implicit assumption here, “merchants” are not inveterate opponents of protective tariffs. The Philadelphia and New York oligarchs desired a nationwide tariff, and there was no reason at this particular point—certainly none deriving from formal nationalist principles—for them to abandon the power of state tariffs as well. Cf. Jensen, Articles of Confederation, p. 178.

46

Radicalism Triumphs in Pennsylvania

Certainly the most exciting political event in the years after the Declaration of Independence was the triumph of the radicals in the Pennsylvania Constitution of 1776. Pennsylvania’s proprietary status had allowed its colonial assembly to retain its dominance even after war began; its conservative opposition to independence then forced the independence movement to polarize into a truly radical opposition. In the provincial conference of June 1776, this opposition had created a dual government in scornful defiance of the moribund assembly, and had declared independence. The conference organized a provincial convention to frame a new constitution for Pennsylvania, and this convention was weighted heavily in favor of representation from the west, in contrast to the previous weighting in favor of the east. It also greatly broadened the suffrage, giving the vote to all taxpaying adult military associators who would take a loyalty oath to the rebel cause.

The Pennsylvania convention which met on July 17, 1776, was heavily dominated by the radicals from Philadelphia and from the west. Benjamin Franklin was named president of the convention, but he was well content to serve as figurehead and took no interest in state politics at the time, preferring to work with the conservatives on the national scene. The major drafters of the Pennsylvania Constitution were the libertarian Prof. James Cannon of Philadelphia College, his fellow Philadelphia mathematician, David Rittenhouse, and the leader of the Philadelphia mechanics, Timothy Matlack. Not delegates to the convention but highly influential behind the scenes were Dr. Thomas Young, formerly of Massachusetts and ideological mentor of Ethan Allen, and Philadelphia merchant and jurist George Bryan. The mass of the delegates were far more broadly based than American legislators had ever been; instead of dutifully electing their betters to office, the masses from among farmers and artisans had risen up to elect delegates of their own.

In the Pennsylvania constitution, the radical leadership and their new mass base created a remarkably democratic instrument which quickly became the object of hate and alarm among conservatives of every stamp throughout the country. Its essence was the radicals’ realization that the inevitable thrust of despotism comes from entrenched oligarchy, and that therefore liberty is best assured by checking and scotching that oligarchy before it has a chance to grow. Conservative urgings of bicameralism were swept aside, and a single-house legislature created with no oligarchical upper house allowed. Executive tyranny was checked in advance by creating a plural executive, a council elected in rotation and removable at any time by the elected assembly. The president of this council, elected by joint vote of council and assembly, was only the presiding officer of the council with no real executive power. Furthermore, the council itself was strictly subordinate to the assembly and had no veto power over legislation. Plural officeholding was totally forbidden. Judicial despotism was prevented by making the Supreme Court judges not life judges guaranteed tenure on good behavior, but elected by the council for seven-year terms and removable by the assembly at any time for misbehavior. Military despotism was checked by allowing the state militia to select its own officers of colonel and below, higher officers to be selected by the assembly. Cannon and his Philadelphia Committee of Privates lost their fight, however, to make all militia officers electable by their men.

Contrary to many interpretations of the Pennsylvania constitution, the aim of the framers was not to erect unchecked rule by the one-house legislature. On the contrary, its power was also to be severely checked in advance. Thus, state government tyranny over local affairs was prevented by making all local officials elected by their local community. And no bill was to become law unless passed by two successive assemblies, so as to test the popular will before any measure could be finally passed. To insure rotation in office as a check upon entrenched power, representatives in the assembly could not serve more than four years out of every seven. An especially interesting check upon the legislature was to be a council of censors, whose job would be to meet every seven years to examine whether any part of government had exceeded its constitutional power (i.e., to function perhaps as a kind of judicial review), and to call a new constitutional convention to amend the old.

The constitutional suffrage continued along lines similar to the voting for the convention itself. Suffrage was broadened by extending it to all patriotic taxpayers and sons of freeholders. While overrepresentation of the west was to continue for two years, the constitution recognized that representation in proportion to the number of voters (in this case taxables) “is the only principle which... can secure liberty” and thus dared to undercut the radical voting base itself on behalf of radical principle, establishing such proportional representation by 1778. One undemocratic feature confined to the freeholders the nomination of two choices for each post of justice of the peace, sheriff and coroner, one of whom would be chosen by the state council. The constitution-makers inserted, again over Cannon’s objections, a Christian oath for holding office—an oath that unusually allowed Roman Catholics to accept office. Two particularly libertarian clauses in the constitution were the abolition of imprisonment for debt (except in cases of fraud) and the allowing of the right to vote to all foreigners resident more than a year in the state, which served to enfranchise many German immigrants. “Excessive” bail was prohibited, and punishments were to be reduced to become more proportionate to the crimes. In addition, jails were to be made places of forced labor where the criminals could be made to work, partially to repair the injuries they had committed. Perpetual entails of estates—an ancient feudal abuse of property—were prohibited, and a free press guaranteed to everyone.

The Pennsylvania constitution also included a comprehensive “declaration” or bill of rights. This included the bulk of the model Virginia Bill of Rights, for example, natural rights, power in the people, right of abolition of government, right of jury trial, liberty except by process of law, prohibition of general warrants, and prohibition of standing armies. To these, Pennsylvania added many other highly libertarian clauses. One held “that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences,” and that therefore there must be no compulsory religious establishment or abridgement of rights on account of religion—in short, full freedom of religion. A second stated “that the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore, the freedom of press ought not to be restrained.” A third clause asserted the “natural inherent right” of all men to emigrate to a state that will receive them, or to form a new state on vacant lands. Another article upheld the right of the people to assemble and to petition for redress of grievances.

A potentially sweeping libertarian clause held “that every member of society hath a right to be protected in the enjoyment of life, liberty, and property,” but inconsistently drew from that the qualifying non sequitur that he “therefore is bound to contribute his proportion toward the expense of that protection.” The bill of rights also upheld, in this state with a long-time pacifist tradition, the right of conscientious objection to bearing arms upon payment of compensation. Some of the members of the convention toyed with the idea of a vague clause criticizing concentration of property in the hands of a few, but this egalitarian clause was stricken from the final draft.*

The highly liberal and democratic Pennsylvania constitution, promulgated on September 28, 1776, proved to be a beacon and inspiration to libertarians and a scourge to the conservatives throughout America. The absence of an upper house greatly angered John Adams and Benjamin Rush, who was pushed rightward by the constitution. Most resistant was the bulk of the wealthy and the well-born, reluctant to give up their old privileges. As one contemporary opponent of the constitution frankly put it: “Must gentlemen, who have ruled society for a century past, be trampled down to the level of common mechanics in an instant and be obliged to consult their humors...?”** Dr. William Shippen, a member of one of Philadelphia’s leading families, wryly wrote of the frenzied opposition:

I don’t wonder to see more of our friends offended and full of resentment upon the change who have been heretofore at the head of affairs, in short have in many instances behaved as though they thought they had a sort of fee simple in them and might dispose of all places of honor and profit as pleased them best, now to be ousted or at least brought down to a level with their fellow citizens.

The main point of attack seized upon by the conservatives—and by historians since—was the convention’s insistence upon prescribing a test oath of loyalty to the constitution and the new government by all Pennsylvania voters. The convention also raised revenue by levying fines on nonassociators, and decreed that justices of the peace could seize and hold indefinitely without trial or habeas corpus anyone speaking or writing against measures of the United States. While pointing to invasions of liberty by liberty’s proclaimed champions was certainly a neat debater’s trick, it was superficial and actually proved little. In the first place, the point was cynically demagogic, as the conservatives cared precious little for liberty. But more than this, it must be emphasized that invasions of liberty, particularly the liberty of Tories, were growing apace throughout the country. The Pennsylvania test oath was part of this nationwide crackdown, a crackdown here occurring in a state riddled with Tories and Tory sympathizers. While the oath was certainly deplorable and inconsistent with liberty, it is impermissible to equate mechanically the systematic invasions of liberty by a despotic regime with the sporadic excesses growing out of a radical revolution’s desperate attempt to install a liberal regime against the opposition of its mortal enemies.

The wealthy and therefore the educated men of Pennsylvania and, hence, the bulk of the lawyers, opposed the constitution, which was defended by the radical theoreticians and supported by the mass of western farmers and by many urban artisans. The right, unwilling to accept defeat, rapidly formed an “Anti-Constitutionalist” party dedicated to framing a new constitution, while the radical defenders of the new regime became the “Constitutionalists.” The Anti-Constitutionalists organized a large meeting in Philadelphia in mid-October, which passed numerous resolutions against the constitution. These critics of libertarians tipped their philosophical hand by calling for the separation of powers as taught by the reactionary Baron de Montesquieu, and also for a more stringent religious test for voting. A large Philadelphia mass meeting a few days later “ratified” these resolves, over the opposition of Young, Matlack, and Cannon.

But the Philadelphia dissenters found their way totally blocked in the hinterland; the committees of Cumberland and Chester counties rejected the Philadelphia resolves, and no county meeting unqualifiedly endorsed them. The November elections, while electing Anti-Constitutionalists from the city and county of Philadelphia, placed the Constitutionalists in firm control of the assembly. But the Anti-Constitutionalists, led by John Dickinson, tried to wreck the assembly by staying away from the sessions and preventing a quorum. The radicals, however, simply and effectively held new elections for the posts of the absent members, and by March 1777, growing Constitutionalist strength gave them a quorum. The assembly under the Pennsylvania constitution was firmly in radical hands.

The conservatives, however, refused to relax their fight; in county after county, they would not serve in public office, and, as in Bedford County, conservative county clerks refused to surrender official records to their successors. Lawyers would not practice in the courts. Rightists rioted in Lancaster and other counties. Increasingly, rightist agitation was being led by James Wilson from Philadelphia. To counter the agitation, the Philadelphia radicals, led by the young artist Charles Willson Peale, formed a Whig Society and a committee of correspondence consisting of Peale, Young, Cannon, Rittenhouse, and Thomas Paine, who brought his powerful pen to the defense of the constitution. Amidst the war crisis, Congress presumed to step in and grant power to Pennsylvania’s executive officials, and the right mounted a crescendo of propaganda for a new constitutional convention. This plan was foiled by the crisis precipitated by General Howe’s advance on Philadelphia in July 1777, when all constitutional questions were postponed. The thwarting of the rightist plans by the British advance was in a sense poetic justice; for this campaign by the right against the constitution played into the hands of the numerous Pennsylvania Tories and greatly weakened the state’s role in the Revolutionary War. To try and throw off the stigma of Toryism, the Anti-Constitutionalist party began to call themselves “Republicans.”

In contrast to the conservatives, the radicals in control of the assembly showed themselves paragons of magnanimity reaching the point of madcap generosity. Thus, their archenemies Robert Morris and James Wilson were retained as delegates to Congress, and they chose the now determined conservative Joseph Reed as first chief justice of the state, only to have him refuse brusquely as part of the withdrawal drive to scrap the constitution. After Reed declined, the post was offered to the Anti-Constitutionalist Thomas McKean, who was opportunistic enough to accept it. Finally, the radicals chose the moderate conservative, Thomas Wharton of the Indiana Company, to be the first president of the Pennsylvania council. When Wharton died in the spring of 1778, moreover, the radicals offered this important post to Reed. This offer finally pricked his opportunism and persuaded him to desert the bitter-end opponents of the constitution.

* Professor Douglass, in his illuminating work on political controversies in the Revolutionary period, lays stress on this clause as evidence of a certain “New Deal” orientation in the assembly. But surely the important point is that this admittedly radical-dominated convention rejected this clause in the constitution. Cf. Elisha P. Douglass, Rebels and Democrats (Chapel Hill, N.C.: University of North Carolina Press, 1955), p. 266.

**Ibid., p. 274.

47

Struggles Over Other State Governments

If radicalism was to have its greatest triumph in Pennsylvania, this was not to be matched in Massachusetts, the birthplace of American radicalism. As we have seen, Massachusetts had taken a considerable turn rightward after the Revolutionary War began. For one thing, it could, for a while, fall back on its old charter rather than have to precipitate a bitter internal struggle to dislodge a Britain-oriented assembly, as happened in Pennsylvania. For another, its major radical leaders had either shifted sharply rightward (John Adams and Hancock) or else lost their sharpness of purpose (Sam Adams). But even so, the Adamses remained the bulwark and focus of the decentralist and left faction in the Continental Congress. Only the Berkshire Constitutionalists in far western Massachusetts had developed a domestic radicalism comparable to the dominant Pennsylvania left. In some respects, the Berkshire Constitutionalists surpassed them.

As Berkshire and Hampshire counties in western Massachusetts continued to live in a state of quasi anarchy, however, pressure began to erupt throughout the state in the fall of 1776 for a regularized constitution—especially after independence had been declared. The old existing charter was now an anachronistic reminder of British rule. Massachusetts radicalism began to emerge again as Concord, Boston, and numerous Worcester towns joined to urge a constitutional convention unmistakably separate from the regular legislature. Many towns also pioneered in another vital democratic innovation: the right of the people themselves to vote in a referendum on any constitution that the legislature or a special convention might adopt.

The Massachusetts General Court, however, backed by the majority of the towns, turned down a move to allow the people to elect a constitutional convention, and formed itself into a convention to write a constitution for the new state. In the considerable newspaper discussion in the summer of 1777 regarding the form that the new constitution should take, two different points of view were taken by “Clitus” and by “Faithful Friend.”*

On the left, “Clitus” urged a government that “is easy, simple, and cheap,” and thus elective in all branches, having a unicameral legislature, and based on universal manhood suffrage. He attacked the conservative tendency to reintroduce the British political system without Great Britain:

We debase ourselves in reintroducing the worst parts of British rule. The plain question is, are we fighting and lavishing our blood and treasure to establish the freest and best government on earth, or are we about to set up a formidable court interest?... The origin and essence of government is in the people. Therefore, let us keep the staff in our own hands.

“Faithful Friend,” in frank rebuttal, took up the traditional conservative theme of total distrust of the people and of the justice or the capacity of individuals to run their own lives. Instead, such power must be surrendered into the hands of a ruling oligarchy, who apparently suffer from no such incapacity, and who would presumably be checked sufficiently by periodic elections. Thus:

The stuff of power never was, nor never can be, in the nature of things, in the people’s hands. As a people we have no power in our hands we can safely exercise, but of choosing our guardians once a year.... We are not fighting for this or that form of government, but to be free from arbitrary power and the Iron Rod of Oppression on one hand, and from popular licentiousness and anarchy and confusion on the other.

The constitution reported by the General Court in the spring of 1778, after a sharp struggle, was shaped by such conservatives as Robert Treat Paine, Thomas Cushing, and John Adams. It was a highly conservative document, and was angrily rejected by the towns of Massachusetts, voting under universal manhood suffrage, by an overwhelming majority of five to one. Boston rejected the constitution by a similar majority. The towns of Lexington, Concord, and Beverly demanded a special constitutional convention, and Lexington, Westminster, Brookline, Lenox, and other towns made it clear that they would reject any constitution that did not have a bill of rights.

The town of Mendon, in Worcester County in the interior of the state, was typical in its libertarian objections to the constitution. It attacked the heavy property qualification for voting for governor or upper house, the veto power of the small upper house over the lower, the absolute power of the governor to command the militia, and the continuation of the Congregational establishment in the state. The nearby town of Sutton also attacked the absence of provisions against legislative corruption and the absence of any provision for abolishing slavery. Sutton also urged a popular referendum voting on all legislation and extending the vote to Negroes.

As might be expected, the most radically libertarian rebuffs to the proposed constitution of 1778 came from Berkshire and Hampshire counties. Thus, the town meeting of Greenwich (Hampshire) rejected the constitution because it replaced popular rule by oligarchy. It

entirely divests the good people of this state of many of the privileges which God and Nature has given them, and which has been so much contended for, and giv[es] away that Power to a few individuals which ought forever to remain with the people inviolate....

Specifically, Greenwich denounced the powers of the governor and the upper house, and called for a unicameral, annually elected assembly, the election of the civil and military officers by the people, and the annual election of all judges and officers of each town and county by the voters of the respective areas.

When the constitution of 1778 was thus overwhelmingly rejected, the conservatives were content to peg along on the old charter, but the Berkshire Constitutionalists persisted in refusing to recognize this regime, and in keeping the county courts closed until a constitution should be established. They even threatened to secede from Massachusetts. When the General Court tried to reopen the Berkshire courts itself in the spring of 1779, a determined crowd prevented the judges from holding court, successfully defying the state of Massachusetts.

Thus, by 1779, conservatives and radicals in Massachusetts were still locked in an inconclusive struggle. Neither had yet triumphed, and a state constitution had not yet been adopted.

The radical principles of the Pennsylvania constitution proved to be far more influential in Vermont—a state precariously and uniquely emerging in rebellion against conservative New York, one of the United States of America. At the westside town of Dorset at the end of July 1776, articles of association had been approved, declaring loyalty to the newly proclaimed United States, but indicating that the Grant lands were a separate district unenthusiastic about being incorporated into New York. The articles were approved by the separate Grant towns east and west of the Green Mountains, and the New York State Convention resumed New York’s old harassment of the Grant settlers, insisting on rent payments to the New York land grantees. In response to this renewed threat, delegates from forty-four towns, eastside and westside, met together for the first time at Dorset on September 25. They boldly declared the Grants a separate district, abolished any New York laws still in effect, and organized a militia under this Grant land convention; The Grant lands were to be a separate state! A committee was appointed to ask Congress for admission to the Confederation. At the same time, a covenant was proposed to be signed by all adult males in Vermont, reciting the grievances against New York and pledging loyalty to this convention.

Approval and endorsement of the convenant by westsiders was almost unanimous; on the eastside a majority of the citizens had approved. Hence, another meeting of the Vermont Convention in mid-January 1777 proclaimed the Grant lands “a new and separate state” named New Connecticut. The convention drew up a declaration of independence modeled after that of the United States—except that New York State, rather than King George, was the major target. It also proclaimed the vital principle that unorganized territories be permitted to form their own governments.

Protests against independence emerged from the leaders of the longtime pro-New York towns in the southeast corner of New Connecticut. But even Brattleboro, the center of the protest, found that its pro–New York committee of safety could not muster a quorum and was falling into disuse, and that proindependence insurgents had seized the town jail and forced the New York-appointed sheriff to resign. New York further alienated Vermonters by reconfirming all royal land grants in its new state constitution.

At this point, Dr. Thomas Young, one of the authors of the Pennsylvania constitution, began to bombard the grateful New Connecticut leaders with letters and suggestions for a constitution. In particular, he sent them as a model a copy of the Pennsylvania constitution. He even persuaded them to change the name of the new state to Vermont, in commemoration of the Green Mountains. In the summer of 1777, undaunted by Congress’ refusal to recognize its independence, Vermont adopted a constitution modeled after that of Pennsylvania. As might be expected from this highly democratic and individualistic state lacking the incubus of a landed or financial oligarchy, the constitution was far more radical than even its model. It included two great milestones. In its bill of rights was contained the outright abolition of slavery—the first such state action —as well as the abolition of all adult bondage, including indentured service. The other breakthrough was the establishment of universal manhood suffrage, another first. On the other hand, the most illiberal feature of the Vermont constitution was its insistence on a Protestant test oath for holding public office.

Boldly but precariously, Vermont, not recognized or admitted by Congress, was now an independent republic. Menaced by Burgoyne’s army and by New York covetousness, little Vermont soon was rent from within. The turbulent eastside towns were split into five brawling factions: the Vermont group, loyal to the new state; the York party of the extreme southeast, agitating for acquisition by New York; the New Hampshire party, encouraged by New Hampshire President Meshech Weare; a pro-Massachusetts group, headed by Charles Phelps of Marlboro; and the imaginative College Party, which owed ideological allegiance to Dartmouth College radicals John Wheelock and Bezaleel Woodward. The Dartmouth group urged a split of eastern Vermont and western New Hampshire from their respective states, and their union into a new state centering on the upper Connecticut River. Actually, this was quite a sensible plan, as eastside Vermont had geographically more in common with western New Hampshire than it had with westside Vermont.

Soon, the New Hampshire and College parties formed an alliance—a coalition precipitated by a petition from sixteen western New Hampshire towns rebelling against taxes and conscription directed from Portsmouth and the eastern towns. They asked to be included in Vermont, and the eastside towns greeted their request with enthusiasm, threatening to secede from Vermont and form the new “College” state if Vermont refused admission to these western New Hampshire towns. The westside leaders, fearing a loss of their power and the enmity of New Hampshire, managed to stall the Vermont assembly’s acceptance. By June 1778, however, the several Vermont towns voted overwhelmingly to admit the New Hampshire petitioners, and to the plaudits of a jubilant eastside, the sixteen river towns were admitted to Vermont. At the same time, a convention at Brattleboro of southeastern Vermont towns compounded the new republic’s problems by proclaiming their refusal to obey Vermont law and their adherence to New York.

New Hampshire now threatened war, and immediately petitioned Congress to take action against Vermont and her own seceding towns. Justice was certainly on the side of allowing the western New Hampshire river towns to join Vermont, but the big battalions were on the side of the New Hampshire State. Colonel Ethan Allen, newly released from an English prison, was quickly sent to Congress and persuaded it to delay judgment. The great confrontation on this issue came at the October 1778 meeting of the Vermont General Assembly. A furious struggle ensued between the westside leadership, which warned that the entire United States would crush Vermont unless the New Hampshire towns were relinquished, and the eastsiders and the towns themselves, which bravely clung to the union of both banks of the Connecticut River. The westsiders won at the last minute, ejecting the river towns from Vermont, at which the great bulk of the eastsiders walked out and threatened secession to form the “College” state.

Radicalism was also triumphant in Georgia, where it was led by artisans and others in the Liberty Society of Savannah, by back country farmers, and by such wealthy planters as Button Gwinnett, one of the signers of the Declaration of Independence. The temporary constitution of April 1776 was succeeded by a similar permanent constitution the following year. The legislature was unicameral, and any hint of executive or oligarchic judicial rule was systematically checked in advance. A governor and council were chosen by the legislature for brief terms and had no veto power and negligible executive power. The judges were to be chosen by the legislature and were removable at any time. Court fees were strictly limited. An important libertarian and democratic feature of the Georgia constitution was the elevation of the power of juries: special jurors were to be judges of law as well as of fact, and were to exercise judicial review on interpreting the constitution. In this way, judicial oligarchies would be kept strictly subordinate to the cross section of the people embodied in the juries. Entail and primogeniture—those hallmarks of feudalism—were abolished, and nearly all local officials were to be elected by the local communities themselves.

Here was a radical constitution to rank with Pennsylvania and Vermont. A conservative element was the restoration of a property qualification for voting amounting to a valuation of ten pounds, with higher qualifications for representatives. With respect to religion, voting was limited to Protestants, the Anglican church was disestablished, and clergymen were barred from being members of the legislature. Voting was established by secret ballot and legislative representation was to be by population; no longer would Savannah and the coast be allowed to dominate the back country.

During the winter of 1776–77, the conservative South Carolina legislature, apparently eager to scotch Georgian radicalism, proposed merger between the two states, but the Georgians angrily refused.

South Carolina came under an ultraconservative constitution of March 1776 under the aegis of the large planter aristocracy. The conservative Rutledges and Henry Laurens were the effective rulers of the new state. The radicals, led by Christopher Gadsden and William Henry Drayton, led a drive for reform and a new constitution culminating in March 1778, when a new charter was accepted by the assembly. This new constitution was considerably more liberal: the president lost his veto power, the upper house was now elective, and suffrage was extended to those owning property equivalent in value to 50 acres of land. However, property qualifications for officeholding remained enormous, and apportionment still weighed heavily in favor of the low-country planters. In an important liberal step, the Anglican church was disestablished, and all sects declared equal before the law; but, on the other hand, Protestantism in general was declared the official religion of the state and churches were subject to state control.

The ultraconservative President John Rutledge tried to veto the new constitution, but he was forced to retire from his post. The radicals were unexpectedly deprived of political victory when Gadsden abandoned the radical camp in exchange for the vice presidency, and later the lieutenant governorship, of the state, allowing Rutledge to return in late 1778 to be the first governor under the new constitution. Gadsden’s split with his mass base became apparent when he extended the deadline for taking the mass test oath of loyalty to the American cause. The radical mechanics of Charleston had zealously been imposing the oath and causing the departure of many Tories into English territory. The radical mechanics rioted against him in early June 1778, and from then on, the spokesmen for radicalism were the leaders of the June riot: Dr. John Budd, the lawyer Henry Peronneau, and the lawyer and merchant Joshua Ward.

In North Carolina, a furious struggle in April 1776 between radicals and conservatives over a constitution had resulted in deadlock. The elections of October were fought furiously and riots abounded in the back country. The best known leaders of the state, such as Gabriel Johnston and William Hooper, were firmly in the conservative camp. John Adams’ ultraconservative Thoughts on Government was widely circulated in the state, and became the handbook of the conservative cause. Hooper attacked democracy and called for the “near perfection” of the British constitution, under which the “selected few” could rule. Hooper was livid about the Pennsylvania constitution and the danger of a similar document emerging in North Carolina.

Typical expressions of radical sentiment were the instructions to the convention delegates by Mecklenburg and Orange counties, widely separated back-country districts. The Mecklenburg instructions were written by John M. Alexander and Waightstill Avery, drafters of the seminal Mecklenburg resolves of 1775; the Orange instructions were drafted by Thomas Burke. These instructions made clear that supreme power belongs to the people, and that any representatives have only strictly subordinate and inferior power. Mecklenburg asked its representatives to be as democratic and antiaristocratic as possible.

The radical program favored separation of powers, but not the Adamsian “separation” of creating agencies unaccountable to the electorate. The radical means were such devices as the abolition of plural officeholding, frequent elections, unicameralism or popular election of any upper house, local election of county officials, etc. In short, the checks and separations were to be exercised by the people themselves, not by a newly created autarchic organ of government.

Other prominent radical leaders were Thomas Person, a wealthy landowner and former Regulator leader of Granville County in the interior, John Penn, also of Granville County, and Willie Jones of Halifax County, one of the wealthiest men in the state. On the other hand, Willie’s brother Allen, also a wealthy landowner, was one of the leaders of the right wing.

The newly elected Provincial Congress of North Carolina finally passed a constitution on December 18, 1776, that embodied a compromise between right and left forces. The legislature was to be bicameral, but both houses and the governor were to be elected by the people. The executive, furthermore, had little power. County court judges were to be elected by the people of the counties themselves. All taxpayers could vote for the Assembly (and all householders paid poll taxes); qualifications for the Senate were a bit more restrictive (fifty-acre freeholders) but not substantially so. Plural officeholding was abolished, insuring a democratic separation of power, and entails and imprisonment for debt were abolished. And even though only Protestants could hold public office, the Anglican Church was disestablished and no other put in its place.

On the other hand, property qualifications for becoming representatives or senators were substantial, and quite large for the office of governor. Representation continued to discriminate against populous towns and counties, i.e., largely against the Piedmont in favor of the Tidewater areas. Justices of the peace—the keystone of despotic local oligarchies in the South—continued to be appointed by the governor and were exempt from the laws against plural officeholding; also appointed by the state were local sheriffs, coroners, and constables, so the local courthouse rings continued in business.

The radicals, headed by Willie Jones and Person, soon proved able, for the most part, to control the new North Carolina legislature, and Thomas Person continually urged lower taxes and a lower salary for the governor.

The tightly knit Maryland oligarchy passed a highly conservative state constitution in November 1776, but with some concessions to the radicals in the western part of the state. The high property qualifications were made very slightly lower than before. Property requirements for the top officeholders were, of course, much higher than that. The Anglican church was disestablished, although room was left for a general tax for support of all Protestant sects. Other liberal provisions were strong prohibitions against plural officeholding by members of the legislature, election of sheriffs by the people of the counties themselves, rotation in office, and an end to poll taxes. A new and extremely conservative way of selecting the Senate, however, was instigated by Charles Carroll of Carrollton: the members were to be chosen for five-year terms by an elected electoral college, who would choose fifteen senators from among themselves; interim vacancies would be filled by the Senate itself! Thus, the Senate was to be virtually unchecked by popular control. This reactionary measure drew the later praise of such presumably moderate conservatives as Jefferson and Madison, as well as from such ultraconservatives as Alexander Hamilton. It influenced the U.S. Constitution in the indirect election of senators and perhaps in the presidential electoral college as well.

Agitation from the western counties and from Anne Arundel County near Baltimore for liberalized suffrage (the latter for votes to all native-born freemen) was beaten back, insuring unshaken control of the state by the oligarchy. Moves for local election of militia officers by their men, and for local elections of justices of the peace and county clerks, were also defeated.

Neighboring Delaware also came under the control of the conservative forces, although its constitution, passed in September 1776, was moderately conservative and undistinctive. Independence advocate Caesar Rodney, the man who saved the day for Delaware’s vote on independence, was defeated as delegate to the constitutional convention, at which the lead was taken by the opponent of independence George Read. The constitution established a powerful council as upper house, with the right to veto legislation; a privy council was to be elected by the legislature to advise the similarly elected president of the state. A Christian test oath was required of all legislators, but any religious establishment was forbidden and clergymen were barred from civil office. The further importation of slaves was also forbidden. The most distinctive feature of Delaware’s constitution was its formulation by a special constitutional convention separate from the ordinary legislature; Delaware was the first state to adopt this procedure of making constitutions.

In New Hampshire, the radicals, predominant in the western towns, objected bitterly to the conservative temporary constitution of early 1776 and agitated for a new constitution. The abolition of property qualifications and of the upper house veto, and provision for a fair proportionate representation, lower taxation, and a bill of rights, were some of their demands. We have seen that these western towns decided to secede and join Vermont, only to be finally rebuffed. Radical polity in New Hampshire was seen in the unique provision of election of delegates to the Continental Congress by the voters themselves rather than by the legislature. Finally, in 1778, a convention was called and a constitution proposed the following year, but the provision that three-fourths of the voters had to ratify the new constitution insured its defeat.

* Douglass, Rebels and Democrats, pp. 171–73.

48

The Rise and Decline of Conservatism in New York

If Pennsylvania provided the paradigm in the revolutionary period of a radical constitution, New York provided the model of a highly conservative one. The provincial congress, or convention, meeting in July 1776, appointed a committee to draft a constitution for New York. The major drafters on the committee proved to be three archconservative oligarchs: John Jay, the young son-in-law of William Livingston, Gouverneur Morris, the young lord of Morrisania Manor, and Robert R. Livingston. The drafting was delayed by New York’s military troubles and the occupation of New York City, but by March the draft was ready. The conservative drafters proved to be heavily influenced by John Adams’ Thoughts on Government.

The conservatives had to consider mass opinion in New York, and were divided on how many concessions to make. Gouverneur Morris led an ultraright assault on the committee draft on the floor of the convention, and succeeded in restoring property requirements which the draft had eliminated. The property qualifications for voting for the assembly were, it is true, lower than in colonial times, and at Jay’s instigation this part of the suffrage was amended to include all freemen of Albany and New York City. This was not a momentous concession, however, since only a small fraction of the urban adult populace were freemen. But New York provided a unique example of a conservative schema in splitting property qualifications for voting, setting far higher property requirements—over twice the amount of the colonial freehold provision—for voting for governor and for senators than for other officeholders. This presumably was to insure an aristocratic executive and upper house. Morris succeeded in striking from the draft the provision for a secret ballot, but his usual ally Jay led a drive that succeeded in obtaining at least a constitutional endorsement for it.

The New York constitution established a bicameral legislature, and, after a struggle, an electoral college for the election of senators was replaced by direct election of senators every four years. Property qualifications for most officeholders were low, but were high for senators. The judiciary was made an oligarchy independent of the electorate by providing indefinite terms on good behavior, i.e., virtually for life. A particularly important conservative provision was the constitution’s validation of all royal land grants, thus fastening the quasi-feudal land system in the Hudson Valley upon the tenants of the state. Jay and Morris could not persuade the convention to provide for the abolition of slavery in New York.

The most important and pioneering conservative provision, however, was the aggrandizement of executive power. Morris pressed for massive power in the elected governor (who was to have a long term of three years) but his veto power was diluted into a plural executive consisting of the governor, chancellor, and the three supreme court judges in a council of revision. The council had veto power over legislation, which could only be overridden by a vote of two-thirds of both houses. This governor was to be commander of the state’s armed forces, and was empowered to convene and dissolve the legislature, and even to recommend legislation. Patronage of executive appointments was vested in a council of appointments that included the governor and four senators. New York’s unique executive veto powers, so redolent of the power of royal governors, provided inspiration for the executive veto power later inserted in the U.S. Constitution.

The constitution provided for full religious freedom, and clergymen were not eligible for office; but this provision was only secured by the deist Morris over the objections of John Jay, who fought for the virtual outlawry of the practice of Roman Catholicism in New York state. Ulster, Orange, and Tryon counties upstate supported Jay, but the more sophisticated and populated counties of Albany, New York, and Dutchess backed Morris. Apart from religion and provision of trial by jury, a bill of rights for the individual was conspicuously absent in the New York constitution.

This constitution was finally adopted on April 20, 1777, with only Peter R. Livingston dissenting to it as dangerously radical. The convention appointed the top executive officials in the state, and the right wing triumphed as Jay was chosen chief justice of the supreme court and Robert R. Livingston chancellor, both by a close vote over the erratic John Morin Scott, who had again veered to the leadership of the radical forces.

For the June elections for governor, the conservatives nominated one of their least attractive leaders, Gen. Philip Schuyler. Scott was the candidate of the left, and in the left-center, there arose a war hero and veteran leader of upstate prewar radicalism: the blunt Gen. George Clinton, yeoman and lawyer from Ulster County. The election results were of momentous import, for Clinton’s victory meant that for the first time in a century the landed oligarchy was no longer in control of New York state. Now, with the mighty financial oligarchies of Pennsylvania and New York suddenly out of control of their states, these oligarchs became committed to a drive for a powerful national government, which they hoped to control and exploit.

Ironically, Schuyler’s defeat may be attributed to the defection of the tenants of Livingston Manor. Their revolt crushed the previous month, they demonstrated that no longer could their votes be taken for granted. The tenants certainly had no use for either Clinton or Scott, both their long-time enemies. But on election day they abstained en masse and Schuyler attributed his defeat to the low vote in his supposed stronghold of Albany County.

With the monumental victory of Clinton, there came to the fore throughout the state a resurgent new left, a radical movement considerably to the left of the governor. In landlord-ridden Dutchess County, for example, more polling places and a secret ballot helped carry Clinton to an unexpected and large victory over Schuyler; it also led to a social and political revolution within Dutchess County. Since the beginning of the 1770s, the top posts in the county had gone, by appointment of the royal governor, to the right: sheriff had been Philip J. Livingston, and chief justice of the county, Beverly Robinson of Virginia, one of the leading landlords in south Dutchess County, who quickly became a Tory. These were ousted in the 1777 elections and replaced by Melancton Smith and the Reverend Ephraim Paine, leaders of the embattled left in Dutchess County. In contrast to their predecessors, young Smith had begun life as a retail clerk, and Paine was a self-educated son of a farmer and blacksmith. No one can deny that this was a true internal social upheaval. Moreover, these two cases were not exceptions. For eleven years after, not a single member of the old landlord ruling class either sought or held an appointed or elective office in Dutchess County.

Also typical of the new men of the left emerging with the Clinton revolution of 1777 was Abraham Yates of the city of Albany. A typical radical of the middle class, this lawyer saw himself as a spokesman of the independent yeomen as well as of the town burghers. His becoming chairman of the Albany committee and member of the New York Senate challenged the dominion of the landed oligarchs of Albany County, appropriately headed by Philip Schuyler who sneered at him as an “old booby” and a mere “cobbler.” Yates was a highly articulate intellectual of this internal revolution in New York. In an unpublished paper, he squarely demonstrated how the patroon and later land grants had stolen the land of the Albany settlers, and he saw “a similarity in the revolutions of 1688 and that of 1776....”*

An historian of the Revolution, Yates maintained that the democratic features of the New York constitution of 1777 were forced upon the convention by mass pressure; had it not been for that pressure, the constitution would have been far more conservative. Much of the pressure came from the great disaffection of the New York militia. This was particularly true of the feudal tenant militia of south Dutchess and of Livingston Manor. While militia colonels earned a salary of $75 a month, privates received less than $7. This wage amounted to little more than slave labor, with the greatest hardships being suffered by the poor. Heavy desertions ensued, forcing the draft rate to be cut in 1777 and concessions to be made to the masses in the constitution.

The characteristic form of right and left in New York State was now taking shape; the conservative forces were wealthy, influential, educated and articulate, cohesive, interrelated, and tightly knit—all of which made for influence and effectiveness far beyond their number. The more numerous radicals, on the other hand, were far less wealthy, and locally based; while strong and well organized within each county, there was no real organization or cohesion between the counties or regions. That was their chief disadvantage, which would be exploited in later years.

* On the internal revolution of 1777 in New York, see the illuminating works of Staughton Lynd: “The Revolution and the Common Man” (Unpublished Ph.D. dissertation, Columbia University, 1962), Part I; Anti-Federalism in Dutchess County, New York: A Study of Democracy and Class Conflict in the Revolutionary Era (Chicago: Loyola University Press, 1962); “The Tenant Rising at Livingston Manor,” op. cit.