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The Movement Toward Independence - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Movement Toward Independence

The Americans prospered, as we have seen, under more than a century of British rule. They enjoyed a great deal of personal freedom and independence. It would therefore be a gross mistake to view the colonists as living in a repressive state or to suggest they were brutalized by English tyrants. There were disagreements, to be sure, but none so fundamental as to provoke a public uprising threatening the existence of government.

Precisely how long this peaceful state of affairs might have lasted had the British continued to follow their “hands-off” policy toward the colonies is uncertain. In any event, 1763 marks an important turning point in Anglo-American relations, for this is the year when the mother country embarked upon a bold new course of action to increase revenue, tighten restrictions on colonial commerce, and require the Americans to assume a greater share of the imperial tax burden. In response to Parliament’s abrupt change of colonial policy, the Americans began to question the constitutional basis of parliamentary statutes designed to impose a new economic relationship between the colonies and England. Reaffirming and at the same time reinterpreting their ancient rights and privileges, they turned in the final stages of resistance to thoughts about the nature of free government. In the end, they came reluctantly to the conclusion that secession was their only recourse.

It was thought in London that the new colonial policy was necessary because of economic conditions in England. British industry was rapidly advancing and manufacturers in the homeland were anxious to expand their markets and increase the flow of raw materials. Moreover, the Seven Years War between England and France, which ended in 1763, had left England in control of North America, but had also doubled the English national debt and greatly increased the tax burden of the English people. Already saddled with a system of monopoly that compelled them to purchase exclusively from England all the European articles they required, and to sell exclusively to England all their materials and productions, the Americans resisted these new reforms with increasing skill and determination. Their opposition laid the foundation for unification of the colonies, driving them reluctantly to the American War for Independence.

The responsibility for inaugurating the new colonial policy was placed in the hands of George Grenville, who became Prime Minister in the spring of 1763. Although the menace of the French and Indians on the western frontier had abated, Grenville persuaded Parliament to pass the Sugar Act (1764) and the Stamp Act (1765) for the announced purpose of “defending, protecting, and securing” the colonies. Complaints against the increased duties on sugar shipped to the colonies were mild compared to the commotion stirred up by the Stamp Act; for one of the underlying purposes of the Stamp Act was to establish the right of Parliament to tax the colonies. The actual revenue accruing from the purchase of stamps on newspapers, playing cards, legal documents, and various business instruments was relatively insignificant. What aroused the ire of the Americans was the imposition of a new and mischievous principle: that of raising a tax in the colonies for the treasury of England.

United in their opposition to the tax, the colonies, in their first effort at intercolonial union for resistance to British imperial authority, sent delegates to a Stamp Act Congress in New York which met on October 7, 1765. Representing nine colonies, the Congress drafted a bill of rights and a statement of colonial grievances based on the principle of “No Taxation Without Representation.” The Americans argued that Parliament had exceeded its authority in passing the Stamp Act because the colonies, not being represented in Parliament, could be taxed only by their own assemblies.

Parliament wisely repealed the Stamp Act on March 17, 1766; but it refused to disavow its new claim to power, and with the repeal it appended a Declaratory Act affirming its right to legislate for the colonies in all matters. The Americans were so overjoyed by repeal that they overlooked the objectionable principle embodied in the Act. The British, as Americans soon realized, had changed their stance but not their position.

In 1767, upon the recommendation of Charles Townshend, the new Chancellor of the Exchequer, a stubborn Parliament counterattacked with another series of statutes designed to implement the new colonial policy. Relying upon the transparent argument that Parliament, by repealing the Stamp Act, had renounced a direct taxation on the colonies but had reserved the right of indirect taxation, the supporters of the new plan imposed a duty on glass, tea, lead, and paper imported into the colonies. The American response was predictably hostile. No less objectionable to many colonials was a provision of the act authorizing courts to grant writs of assistance to enable British officials to search any house or ship suspected of harboring smuggled goods (James Otis had publicly opposed such writs as early as 1761, contending that they were unconstitutional). Other objectionable Townshend Acts included the establishment of a board of custom officials and an act suspending the New York assembly because it had failed to make satisfactory arrangements for the quartering of British troops stationed in the colony.

The controversy over the Townshend Acts centered on questions of Parliament’s constitutional powers. Chief among the American opponents was the able lawyer John Dickinson, who maintained in his widely circulated Letters of a Farmer in Pennsylvania that the Townshend Acts contravened established English constitutional principles. Resistance also took the form of a boycott by the merchants and some southern planters against the importation of British goods; and in Boston a clash between seven soldiers and a mob of townspeople, which resulted in the death of four citizens in the so-called Boston Massacre, aroused the people of Massachusetts to a fever of agitation.

Confronted with the fact that the Townshend Acts were a failure, both politically and economically, the ministry in London once again made a strategic withdrawal from the field of contention. The Townshend Duty Act was repealed in April 1770, except that the duty on tea was retained to save the principle that Parliament had the authority to tax the colonies. From that moment it was clear that the ministry, despite the folly of continuing the contest, was determined to subdue the colonies. Lord North, in fact, formally declared in Parliament that repeal of all the new taxes could not occur until the Americans were brought to the feet of Great Britain. By now the disposition to resistance had struck deep roots in every American colony. At first the Americans had only denied the right of Parliament to tax them; but the scope of their rebuttal had increased, by degrees. They began to question the authority of Parliament altogether.

The brief hiatus following the partial repeal of the Duty Act was broken in 1773 when Parliament enacted the Tea Act. The purpose of this ill-considered statute was to shore up the crumbling financial structure of the East India Company, and to establish a precedent to support England’s right to tax the colonies. Neither objective was achieved. American resistance against the plan was immediate and strong, highlighted by the famous Boston Tea Party. Seemingly indifferent to the integrity of the Americans, who were waging a war of first principles and were not motivated simply by economic considerations, the English mistakenly believed that the colonials would acquiesce in the modest import duty under the Act because it permitted them to purchase tea at half the price paid in London.

This miscalculation was compounded by British reprisals characterized by the colonials as the “Intolerable Acts,” which were passed by Parliament in 1774 to punish the obstreperous Bay Colony. The first of these, the Boston Port Act, closed the Boston harbor to nearly all trade until the citizens of Massachusetts paid the East India Company for the tea they had destroyed. The Massachusetts Government Act changed the colony’s royal charter by transforming the upper house of the assembly from an elective into an appointive body, and by restricting the right of self-government in the towns. Under the Administration of Justice Act, the Crown’s appointees in Massachusetts who were accused of capital offenses in the discharge of their official duties could be sent to England or other colonies for trial. A fourth measure, the Quartering of Troops Act, gave provincial governors the authority to requisition, with compensation to the owners, all inns, taverns, and unoccupied buildings needed for the proper housing of British troops stationed in the colonies. Not intended to be punitive, the Quebec Act, which among other things deprived Massachusetts, Connecticut, and Virginia of western land they claimed under the sea-to-sea clauses of their charters, was also regarded in America as one of the “Intolerable Acts.”

In support of the Bostonians, the Virginia House of Burgesses passed a resolution designating June 1, 1774 (the day the Boston Port Act was scheduled to take effect) as a day of fasting and prayer. Governor John Dunmore viewed this as an act of defiance against the authority of the Crown and promptly dissolved the assembly. Earlier, in 1773, Virginia had taken the lead as the first colony to establish committees of correspondence on an intercolonial basis. These promoted cooperation among the colonies in a more continuous manner than had the Stamp Act Congress. The Virginia legislators now took the greatest step of all the colonies toward united action. Meeting on May 27, 1774, in a rump session at Raleigh Tavern in Williamsburg, the dismissed Burgesses issued a call to the other colonies to send delegates to a continental congress in order to consult upon the common grievance.

A congress of some fifty-five deputies, representing every colony except Georgia, met in September and October of 1774 at Philadelphia and devised a plan of united action against the English government. In essence, the delegates reaffirmed the longstanding principle that each colony was substantially autonomous within the British empire; and to achieve that end they declared economic war on the mother country. The delegates unanimously resolved that Congress request all merchants in the several colonies to withhold the shipment of goods to Great Britain, and further agreed that after December 1, 1774, there would be no importation of goods from Great Britain, Ireland, or the West Indies unless American grievances were redressed. To enforce the ban on all commerce with the mother country, the Congress established a continental association of local communities; but a proposal to establish a central government of united colonies was rejected.

The Declaration and Resolves of the First Continental Congress reveals the state of political thought of American colonial leaders at this stage of their quest for liberty. The Declaration was the product of the “Committee for States Rights, Grievances and Means of Redress” that was appointed on September 7, 1774, “to state the rights of the colonies in general, the several instances in which these rights are violated or infringed, and the means most proper to be pursued for obtaining a restoration of them.” The committee consisted of two delegates from each colony (except Georgia), and included Richard Henry Lee of Virginia, John Jay of New York, John Rutledge of South Carolina, Edmund Pendleton of Virginia, William Livingston of New York, Roger Sherman of Connecticut, Joseph Galloway of Pennsylvania, and the two Adamses from Massachusetts.

A conciliatory tone of loyalty to the Crown, reflecting the conservatism of these reluctant rebels, pervades the document, despite the gravity of the charges it contains. Above all, the Declaration is a rudimentary statement of conflicting theories about the origin and nature of American freedom. In a single breath, the delegates affirmed their natural rights as men, their prescriptive rights as Englishmen, and their chartered rights as Americans. Thus they declared that, “by the immutable laws of nature, the principles of the English Constitution, and the several charters,” the American people were “entitled to life, liberty and property … all the rights, liberties, and immunities of free and natural born subjects within the realm of England … [and] to the common law of England.”

These sweeping assertions, it must be emphasized, are more the result of efforts by the committee to accommodate the opposing views of its members than of intellectual confusion. As John Adams later noted in one of his lively accounts of the first Congress, one of the major “Points which labored the most [was] whether We should recur to the Law of Nature, as well as to the British Constitution and our American Charters and Grants.” Richard Henry Lee, for example, said he “Can’t see why We should not lay our rights upon the broadest Bottom, the Ground of Nature.” John Jay insisted that “It is necessary to recur to the Law of Nature.” John Rutledge, on the other hand—joined by Joseph Galloway and James Duane of New York—argued that “Our Claims I think are well founded on the British Constitution, and not on the Law of Nature.” Adams discloses that he “was very strenuous for retaining and insisting on it [the Law of Nature], as a resource to which We might be driven by Parliament,” and this is the view that ultimately prevailed.

The rhetoric of the Declaration indicates that the members of the First Continental Congress earnestly believed that they were seeking merely a “restoration” of their established legal rights, and were not laying claim to new rights of a radical sort based on natural rights philosophy. Their assertion of rights based on the “law of nature,” in other words, was written in anticipation of Parliament’s rejection of their constitutional doctrines, more out of desperation than of solid conviction. Notwithstanding their reference to “the immutable laws of nature,” the focal points of their brief against Parliament were their established rights under the English Constitution, the common law, and their colonial charters.

There were other fundamental issues, equally important in connection with American political and constitutional development, dividing the delegates. Adams recalled that a second point of major disagreement in the committee “was what authority we should concede to Parliament: Whether we should deny the Authority of Parliament in all Cases: Whether we should allow any Authority to it, in our internal Affairs: or whether we should allow it to regulate the trade of the Empire, with or without any restrictions.” Rejecting the principle of legislative supremacy, they declared that the legislative authority of Parliament was limited by the higher law of the Constitution. The Intolerable Acts, the law establishing the board of commissioners, and the exercise of legislative power in the colonies by appointed councils, in violation of the principle “that the constituent branches of the legislature be independent of each other,” were, said the delegates, “dangerous” and “unconstitutional.” Proclaiming the “right of the people to participate in their legislative councils,” the delegates finally agreed that Parliament could regulate the external commerce of the colonies but could not levy a tax on them.

The Declaration also reveals an early commitment not only to representative government and a broadly based system of civil liberties, but also to bicameralism and, most significantly, to the overarching principle of the American Constitution—namely, that a constitution is a higher law, and legislative enactments in conflict with it are “unconstitutional” and unenforceable. Here in embryo, then, was the distinctly American doctrine of judicial review, the rule of interpretation adopted by the Supreme Court in the landmark decision of Marbury v. Madison (1803).

The First Continental Congress, we may now observe, stands as an important milestone in American constitutional development. Here, for the first time, political leaders from throughout the colonies—many of whom would later serve in the Constitutional Convention of 1787—met for an extended period of time to discuss basic principles of constitutional government. For many, it was the first time they had met face-to-face, and it was the beginning of a long and close relationship among the Founding Fathers. In 1787 there were forty-one surviving members of the First Continental Congress. Ten were elected to the Constitutional Convention. Richard Henry Lee, Patrick Henry, and Richard Caswell refused to serve, but the remaining seven—John Dickinson, William Livingston, Thomas Mifflin, George Read, John Rutledge, Roger Sherman, and George Washington—signed the Constitution and supported its ratification. In addition, twenty of the surviving members of the First Congress were elected to the State ratifying conventions of 1787–1788; most of them supported adoption.

On May 10, 1775, three weeks after the battles of Lexington and Concord, the Second Continental Congress met in Philadelphia to consider “the state of America” and prepare the nation for armed rebellion. One of the first orders of business was the selection of a commander-in-chief for the Continental army. A number of New Englanders favored Artemus Ward, who was in command of troops around Boston, but the southerners, fearful of New England’s imperial ambitions, successfully urged the unanimous election of George Washington. The Virginian reluctantly accepted, confiding to a friend that the “partiality of the Congress, added to some political motives, left me without choice.”

While the delegates maneuvered to gain support for their States’ “favorite sons” in the debate over the selection of Washington’s generals, the bloody Battle of Bunker Hill was fought on June 17. News reached Philadelphia on June 22, the same day Congress elected eight brigadier generals and voted to issue $2 million in paper money. The next day Washington left to take command of the army in Massachusetts, and on June 23 a committee was appointed to draw up a declaration for Washington to read to the troops at Cambridge. The Declaration of the Causes and Necessity of Taking up Arms of July 6, 1775, is the product of that committee.

Although probably all of the members of the Second Continental Congress were agreed that military resistance against Great Britain was necessary for the protection of American rights, they were far from unanimous with respect to the ends sought. One group of delegates, led by John Dickinson, favored reconciliation, still hoping that the Americans might remain in the British Empire. There were others, however, who agreed with the Lees of Virginia and the Adamses of Massachusetts that reconciliation was now hopeless. They too shied from the thought of independence, but favored a more aggressive stance against the mother country.

The committee, consisting of Benjamin Franklin, John Jay, Robert Livingston, Thomas Jefferson, John Dickinson, and Thomas Johnson of Maryland, reflected these differing attitudes. Two versions of the declaration were considered, one offered by Jefferson and the other, more conciliatory in tone, by Dickinson. Largely the work of these two men, the final draft served as a compromise between these factions of the Congress, while at the same time pointing the way toward the Declaration of Independence. Considering the nature and extent of this protracted struggle for liberty, with American blood already spilled on the battlefield and a large-scale military conflict in the offing, the Declaration of the Causes and Necessity of Taking up Arms is a tribute to American moderation and restraint in the revolutionary period.

Their quarrel was with Parliament, which, as they rightly complained, had ignored their earlier petitions. And instead of acting in a conciliatory manner, the Lords and Commoners seemed bent on “enslaving the colonies.” Appealing to world opinion, the Americans listed their grievances, which included unlawful usurpations of power rightfully belonging to the colonial assemblies, violations of such basic liberties as trial by jury, and invasions by British troops who “have butchered our countrymen,” committed arson, and “seized our ships.” They denied, however, any intention “of separating from Great Britain and establishing separate States.” In words written by Jefferson, they eloquently declared, “before God and the world,” that “the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverance, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves.” As a stubborn Parliament was quick to learn, the Americans meant what they said.