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Taking Up Arms, 230 Years Later - June 27, 2005

 

Taking Up Arms, 230 Years Later

 

  

Nearly 230 years ago, on July 6, 1775, the Second Continental Congress adopted its “Declaration of the Causes and Necessity for Taking Up Arms,” the often-overlooked document that anticipated the Declaration of Independence.  Although it would take another year before Congress was ready to declare American independence from Great Britain, the Revolutionary War had already begun:  the battles at Lexington and Concord had been fought, Ethan Allen’s Green Mountain Boys had taken the British fort at Ticonderoga, and George Washington had been commissioned commander-in-chief of the Continental Army that was preparing to meet British forces in Boston.  With the war thus underway – not yet a war for American independence, but rather a war in defense of the rights Americans believed they held under the British constitution – the Congress had decided it was time to declare the reasons why Americans were taking up arms against their King. 

Drafting the declaration, however, was easier said than done.  Congress appointed a committee of five to draw up the document, but that original committee’s draft – which was largely the work of John Rutledge of South Carolina – was unacceptable.  (We do not know why, for no copy of the original draft is known to be in existence.)  On Monday, June 26, 1775 the Congress recommitted the task to the committee and added two members:  John Dickinson of Pennsylvania and Thomas Jefferson of Virginia.  Jefferson had just arrived in Philadelphia a few days before.   He already had the reputation of being a splendid writer; and being a member of the delegation from Virginia, the most populous of the 13 colonies – albeit its youngest member – made his appointment to the committee quite logical.  Jefferson then was asked to write a new draft.  Jefferson’s draft was too strongly worded for Dickinson:  as noted below, the two men had important political differences – Jefferson was a radical, and Dickinson a moderate – with respect to Britain’s authority over the colonies.  Dickinson retained some of the passages of Jefferson’s draft but otherwise rewrote the document; and it was Dickinson’s draft that was reported to Congress and, with slight modifications, was adopted on July 6. 

The wordy preamble to the Declaration began by attacking the Parliament of Great Britain, which it accused of having “an inordinate Passion” for power and an “intemperate Rage for unlimited Domination” over the American colonies.  Although Parliament did not hold “an absolute Property in, and an unbounded Power over” the American colonies, it nevertheless had  attempted “enslaving these Colonies by Violence, and have thereby rendered it necessary for us to close with their last Appeal from Reason to Arms.”  The Congress declared itself “bound by Obligations of Respect to the Rest of the World, to make known the Justice of our Cause.” 

Some of Jefferson’s more striking passages were retained in the final draft, among them his characterization of the colonization of America:  “Our forefathers, inhabitants of the island of Great Britain, left their native land to seek on these shores a residence for civil and religious freedom.”  The final draft also retained Jefferson’s list of grievances against the British government.  These included complaints that Parliament for over a decade had passed various laws depriving the colonists of their rights:  By levying taxes on the colonies, Parliament had “undertaken to give and grant our Money without our Consent, though we have ever exercised an exclusive Right to dispose of our own Property; Statutes have been passed for extending the Jurisdiction of Courts of Admiralty and Vice-Admiralty beyond their ancient Limits; for depriving us of the accustomed and instable Privilege of Trial by Jury in Cases affecting both Life and Property; for suspending the Legislature of one of the Colonies; for interdicting all Commerce to the Capital of another; and for altering fundamentally the Form of Government established by Charter, . . . ; for erecting in a neighbouring Province, acquired by the joint Arms of Great-Britain and America, a Despotism dangerous to our very Existence; and for quartering Soldiers upon the Colonists in Time of profound Peace.”  Moreover, Parliament in one of its statutes had declared that it could “`of right make Laws to bind us in all Cases whatsoever.’ What is to defend us against so enormous, so unlimited a Power?”  The Declaration’s list of grievances also included Jefferson’s language describing the British military occupation of Massachusetts under General Gage, who sent out from Boston on April 19 “a large detachment of his Army, who made an unprovoked Assault on the Inhabitants of the said Province,” killing and wounding several people in Lexington and in Concord.  “Hostilities, thus commenced by the British troops, have been since prosecuted by them without regard to Faith or Reputation.” 

Dickinson had added to Jefferson’s draft some striking passages of his own; indeed, it was Dickinson the moderate, and not Jefferson the radical, who authored some of the Declaration’s most strident passages:  “Our cause is just.  Our union is perfect.  Our internal Resources are great, and, if necessary, foreign Assistance is undoubtedly attainable.”  To Jefferson’s statement, that “we most solemnly, before God and the World, declare, that . . . the Arms we have been compelled by our Enemies to assume, we will . . . employ for the preservation of our Liberties,” Dickinson added the even more memorable words, “being with one Mind resolved to die Freemen rather than to live Slaves.” 

The declaration explicitly stopped well short of claiming independence.  It assured Americans’ “Friends and Fellow-Subjects” in Great Britain that “we mean not to dissolve that Union which has so long and so happily subsisted between us, and which we sincerely wish to see restored.”  Indeed, it denied that Americans had raised armies “with ambitious Designs of separating from Great-Britain, and establishing independent States.” It concluded (again largely following the words of Jefferson’s draft), “We fight not for Glory or for Conquest.  . . . In our own native Land, in defence of the Freedom that is our Birthright, and which we ever enjoyed till the late Violation of it – for the protection of our Property, acquired solely by the honest Industry of our fore-fathers and ourselves, against Violence actually offered, we have taken up Arms.  We shall lay them down when Hostilities shall cease on the part of the Aggressors, and all danger of their being renewed shall be removed, and not before.” 

To fully understand the arguments made in the 1775 Declaration – and to see how it both illustrated the conservative nature of the American Revolution prior to 1776 and anticipated the radical nature of the Revolution after 1776 – we need to briefly consider the causes of the Revolution itself. 

Like other great events in world history – such as the fall of the Roman Empire, the English Civil War, the French Revolution, the American Civil War, and the Russian Revolution – the American Revolution had many causes, some proximate and others underlying.  Unlike its counterparts in France later in the 18th century and in Russia in the early 20th century, the American Revolution has been frequently characterized by historians as “conservative,” in the sense that it did not result in vast social upheaval that transformed everyone’s lives.  Indeed, as the 1775 Declaration shows, the Patriot leaders of the American Revolution used conservative arguments – legal arguments, not surprisingly, as many of them were lawyers – that asserted their rights under the British legal system and constitution, as they understood them.  They sought, not to remake their political society, but to vindicate rights that they believed were denied to them by the British government.  (When American Patriot leaders decided that they could not obtain full redress for their grievances from the British King and his government, however – when they decided that they must fight for their political independence and for their rights, not as Englishmen but as human beings – the Revolution became truly radical, as I’ll discuss in my forthcoming Independence Day essay.) 

The proximate cause – that is, the direct and immediate cause – of the American Revolution was the change in British imperial policy after the French and Indian War (or, as it was called in Europe, the Seven Years’ War) ended in 1763.  Although Britain was victorious in that war, defeating its historic enemy, France, as well as France’s allies among the Indian tribes in North America, the British victory had enormous costs.  Those costs included not only the expenses of the war itself – a war that had begun on the American western frontier in 1754 and which was seen by many people in Britain as a “colonial” war that didn’t directly concern them – but also the enormous new expenses of keeping the peace.  Britain added to its empire in North America, acquiring the French possessions in Canada, pushing the boundaries of British control westward to the Mississippi and northward to the Great Lakes.  Under pressure from British taxpayers who resented paying for expenses of Britain’s empire in North America, the British government – that is, the King, his ministers, and Parliament – sought to find ways to fund the expenses of governing the King’s possessions in North America that did not add to the tax burden already shouldered by the King’s subjects in Britain; that is, they sought new sources of revenue that would make the colonies self-supporting.  This policy led to the series of tax laws passed by Parliament that prompted so much opposition.  

The underlying cause of the American Revolution was the difference between the legal and political systems of Britain itself and its colonies in North America.  As late as 1775, British people on both sides of the Atlantic were not yet aware of this difference, although it was fundamental; indeed, it could be argued – as many historians have – that the legal and political arguments made by both sides in the Revolution were so intense because each side believed, erroneously, that the other sought to subvert the “constitution,” unaware that they really were talking about two different conceptions of the “constitution.”  The problem, of course, was that Britain had no written constitution; when English-speaking peoples talked of a “constitution” in the mid-18th century, they meant, basically, a body of customs and traditions – “the way we’ve always done things” – that, among other things, defined both the rights of the King’s subjects and the powers of the King’s government.  And although the British system of government seemed nearly identical on both sides of the Atlantic, the colonial governments in America were actually quite different from the governmental system in the mother country, in many important ways. 

Both Britain itself and the thirteen colonies in North America had, in theory, a “mixed” government which combined elements of monarchy (the King, or his place in the colonies, the governor), aristocracy (the House of Lords in Parliament and the aristocratic body, typically the governor’s council, in each of the colonies), and democracy (the House of Commons in Parliament and the popular assemblies in the colonies).  It was the last element that was most different between Britain and the colonies:  the popular assemblies in the colonies were far more representative of the people than was the House of Commons in the British Parliament.  Only a fraction of the “common” people (that is, the non-aristocrats) of Great Britain owned the requisite amount of land to make them eligible to vote for members of Parliament; and the districts the MPs represented bore no relation to their actual population:  some had few or no constituents at all (so-called “pocket boroughs,” for they were controlled by some wealthy or powerful person who metaphorically held them in his pocket), while many populous towns were not represented at all (such as the “newer” industrial towns of Birmingham or Manchester, which had rapidly grown in population since the late medieval period and especially since the onset of the Industrial Revolution in the 18th century).  In the American colonies where land was plentiful, however, the majority of adult free males were eligible to vote for members of their colonial assemblies; and those assemblies – while nowhere near the modern standard of “one person, one vote,” with representation strictly proportional to population – were far better representative of the actual population of the colony.  Equally important, the colonial assemblies were used to wielding power.  However each colony had originated, by the middle of the 18th century, its political history was essentially the same story:  in the power struggle between colonial governors and the popular assembly, it was the assembly that always won.  Why?  Chiefly because it had in its arsenal one of the most powerful political tools – the power over the purse-strings – for it was the assembly that raised the revenue which, among other things, paid the salary of the governor and other royal officials in the colony.  

One other important way in which theory and practice parted company – the theory that colonial America had replicated the British system of government versus the actual practice of governing in the colonies – was in the degree to which the colonies were autonomous, or self-governing.  In theory, the colonies were part of the British Empire, with the colonists subjects of the British king, and thus were equally subject to British law as the inhabitants of Great Britain itself.  Indeed, virtually all the royal charters that established the colonies in North America had stipulated that their laws be in accord with the laws of England.  The British government – specifically, the body called the Board of Trade, which was an arm of the King’s privy council – had the authority to nullify, or “disallow,” any laws passed by colonial assemblies that it deemed inconsistent with English law.  However, the Board exercised that power so infrequently – only a small portion of colonial laws, rather less than 5%, were disallowed – that, in practice, the colonies had become accustomed to governing themselves with regard to their internal affairs.  Although their external trade was governed by a series of laws passed by Parliament – the so-called Navigation Acts, which dated back to the mid-17th century, which sought to limit colonial trade with England’s enemies, principally the Dutch and the French, during wartime – those laws were not rigidly enforced in the colonies.  Smuggling was rampant; indeed, some of the wealthiest – and most politically powerful – American families had become wealthy through the black-market trade. 

The older British policy of “salutary neglect,” as it was called by the British statesman Edmund Burke, was replaced in the 1760s by a new policy that sought to enforce British laws – particularly, regulations of trade – more strictly in North America.  The change happened during the French and Indian War, with the death of the old king, George II, and the ascension of his grandson as the new king, George III.  Among the tools used by royal customs officers to police smuggling were “writs of assistance,” open-ended search warrants issued in the name of the king which authorized customs agents to search any premises, at any time, for contraband.  When British colonial officials sought to obtain new writs of assistance, in the name of the new king, from a court in Massachusetts in 1761, a group of Boston merchants hired an attorney, James Otis, to represent them in challenging the legitimacy of the writs.  Although Otis failed to prevent the court from issuing the writs, his argument – that they were illegal because they were contrary to customary law – was one of the first constitutional arguments of the American Revolution.  (Indeed, John Adams, who as a young lawyer had attended the court hearing as a spectator and taken notes on Otis’ arguments, later declared that there the Revolution had started.  Whether or not that’s an exaggeration, it’s acknowledged by most historians that Otis’s arguments anticipated two important principles in American constitutional law:  the principle that valid search warrants must specify the place to be searched and the goods to be searched for, which was later enshrined in the Fourth Amendment; and the principle that a court could declare a law contrary to the “constitution” to be null and void, the principle of judicial review.) 

Starting with the Sugar Act of 1764, Parliament – under pressure from British taxpayers demanding that American colonists pay their “fair share” – attempted to pass a series of laws levying new taxes on the colonists.  The Stamp Act of 1765 generated the most controversy, in large part because of the nature of the tax it imposed.  The Act required revenue stamps to be bought and affixed to a long list of assorted goods, including land deeds and other legal documents, ship clearances, college diplomas, pamphlets, newspapers, and other printed materials.  Thus, the tax hit hardest and most directly those within the colonies who were most able to articulate their opposition:  lawyers, students, “men of letters” – in short, the intellectuals.  Like the import duties imposed under the Sugar Act, the revenues to be obtained under the Stamp Act were meant to pay the costs of military defense and royal government in the colonies – and thus threatened to by-pass the colonial assemblies, lessening their “purse string” powers and the leverage it gave them over royal governors.  And also like the Sugar Act, the Stamp Act was to be enforced by the admiralty courts, which were special courts presided over by admiralty judges in which defendants did not have the right to trial before a jury. 

The controversy over the new tax laws passed by Parliament since 1763 – the controversy over the American argument of “no taxation without representation” -- was, essentially, a dispute over two different theories of representation.  When colonial Americans thought of their right under the English constitution not to be taxed except by their own consent – a right that had been hard-fought for centuries and finally won with Parliament’s victory over the kings during the constitutional struggles of the 17th century (the English Civil War and the Glorious Revolution) – the Americans thought of their own colonial assemblies, the places where they were actually represented (whose members they themselves actually elected), rather than the House of Commons in the British Parliament.  To most British politicians, however, the colonists were “virtually” represented in the Commons, which in theory represented the interests of the “commons,” or the middle class, throughout the British empire.   Under this view, Americans had no more cause to complain about their inability to directly elect members of Parliament than did the majority of Britons, who also lacked that ability.   

Americans and their intellectual allies among the radical Whigs of Britain rejected the theory of virtual representation.  They understood that the diversity of private interests, throughout all the societies that comprised the British Empire, embraced far more than differences in social class; in other words, in their political philosophy, they had moved beyond the classical or medieval view that saw society solely in terms of rigid classes and instead embraced a modern view that saw all sorts of differences – including geographical differences – in pluralistic societies.  They understood that the “commons” of the Empire had all sorts of different interests – that, among other things, the economic interests of the middle class in Britain were distinct from those in the colonies in North America, just as those were distinct from the colonies in the Caribbean or in India, for example.  They also understood that Americans, because of geography, could not practically be represented in the Parliament of Britain and therefore ought to be self-governing.  They also understood that the British Parliament ought to be reformed, to make the House of Commons more representative of people in Britain.  Those reforms eventually would come, but not until well into the 19th century, with the Reform Act of 1832.  In the 1770s, British politics was still too wedded to traditional views for the radical Whig ideas of Americans and their friends in Britain to hold much sway with mainstream British politicians. 

Opposition to the Stamp Act united the colonies, as they asserted their rights (as they understood them) under the English constitution.  Nine colonies sent delegates to a Stamp Act Congress that met in New York City in October 1765 and passed a series of resolutions declaring that the Act violated colonists’ rights – specifically, their right not to be taxed except by their own consent, given by the only bodies in which they actually were represented, their colonial assemblies; and their right to a jury trial.  More importantly, in terms of practical politics, the Congress also voted to organize a boycott of British manufactured goods until Parliament repealed the law.  It was this boycott – and the political pressure of British manufacturers who were hurt by it – that eventually prompted Parliament to repeal the Stamp Act in 1766.  The debate in Parliament was heated; a minority of “friends of America” agreed with the American argument about representation, but the majority of members adhered to the view that Parliament had supreme legislative power over the American colonies.  That view was adopted in the Declaratory Act, passed almost simultaneously with the Stamp Act’s repeal, which asserted Parliament’s authority to “bind the colonies and people of America . . . in all cases whatsoever.” 

Repeal of the Stamp Act also resulted in a reshuffling of the King’s ministers.  The new government, with Charles Townshend as chancellor of the exchequer, continued to try ways to raise revenue in America.  Believing that the unhappy experience with the Stamp Act showed that Americans would not stomach a direct tax, Townshend sought to impose an indirect tax – a tax on certain goods imported into the colonies, which would be paid by merchants and passed on to their customers, in the higher prices of those goods.  The ministry thought such an indirect tax, because it could be thus hidden, would arouse less opposition in the colonies; they also rationalized the import duties as “regulations of trade” and therefore within the authority of Parliament, as many Americans had conceded it.   

Parliament passed the Townshend Act, imposing these import duties, in 1767.  The Townshend Act immediately faced opposition by Americans, who saw through the phony distinction the British government sought to make between direct taxes and “trade regulations.”  John Dickinson, one of the moderates in America who had conceded Parliament’s authority to regulate colonial trade, wrote a series of letters under the misleading pseudonym “A Pennsylvania Farmer” (misleading because Dickinson was a lawyer, not a farmer), in the Philadelphia newspapers, attacking the Townshend duties as violations of Americans’ rights.  Although Dickinson conceded that Parliament, in his view, “unquestionably possesses a legal authority to regulate the trade of Great Britain and all her colonies,” he argued that the Townshend Act was “an innovation” – indeed, “a most dangerous innovation” – because, unlike previous Parliamentary laws regulating colonial trade, this Act imposed a duty “for the purpose of raising a revenue.”  Dickinson’s argument refined somewhat the American “No taxation without representation” argument, by embracing all Parliament legislation – including laws, like the Townshend Act, in the guise of trade regulations – designed to raise revenues.  As with the opposition to the Stamp Act, however, the essential American argument was that under the British constitution, taxes could not be imposed legitimately except by the consent of the taxpayers, given by their representatives.  And, as the American colonies saw it, the only places in which they truly were represented were their colonial assemblies, whose members they directly elected.  

In the years that followed 1767 the British government commit a variety of offenses against colonial rights, including the suspension or dissolution of many colonial assemblies, the quartering of British troops in private homes, and the closing of the port of Boston and the imposition of martial law in Massachusetts in retaliation for the “Boston Tea Party” of December 1773.  By the crucial year of 1774, when the First Continental Congress met in Philadelphia, many Americans had come to embrace a more radical view of the limits of Parliamentary authority over the colonies.  Unlike Dickinson and other moderates, they did not concede Parliament’s authority to regulate colonial trade and instead asserted that Parliament not only lacked the power to tax the colonies but also the power to legislate for the colonies, in all matters.   

Among these radical Americans was Thomas Jefferson, who was chosen by his neighbors in Albemarle County, Virginia, to represent them at the colony’s convention in Richmond, to meet prior to the Continental Congress.  Jefferson took ill and was unable to attend personally, but he drafted a series of resolutions proposed for the Congress.  Those resolutions asserted the radical view that the British Parliament “has no right to exercise authority” over Americans.  Jefferson denied not only Parliament’s authority to levy taxes in America but also to regulate colonial trade, for he saw free trade as a natural right.  His resolutions called upon King George III, in his capacity as monarch over the entire British Empire, to protect the rights of his subjects in America from the illegitimate authority of the British Parliament, by vetoing that body’s acts of “pretended legislation.”  Jefferson’s resolutions were too radical for the First Continental Congress – which adopted resolutions denying Parliament’s authority only in matters of “taxation and internal policy” – but his resolutions were published, anonymously, in pamphlet form under the title A Summary View of the Rights of British America and caused quite a stir on both sides of the Atlantic. 

Jefferson’s authorship of  A Summary View was an open secret, and it helped contribute to his reputation for being a good writer – having a remarkable “felicity of expression,” as John Adams later put it – which led to his appointment to the committee that drafted the 1775 Declaration and ultimately to the committee that drafted the Declaration of Independence a year later.  

Between July 1775 and July 1776 several critical developments occurred that prompted other American Patriots to adopt Jefferson’s more radical view of the limits of Parliament’s authority – and all Patriots (including Jefferson) to abandon all hope that the King would intercede with Parliament to protect Americans’ rights.  Many Americans perceived in the British government, particularly among the King’s ministers, a “conspiracy” against them; they saw that British policy, despite frequent changes in ministers (from both the Tory and Whig parties, and from different factions within the Whig party), nevertheless since 1763 had continuously asserted a policy of absolute authority over the American colonies, treating them as subordinate to the British government and Parliament.  Jefferson described this perceived conspiracy in his Summary View when he wrote, “Single acts of tyranny may be ascribed to the accidental opinions of a day; but a series of oppressions, begun at a distinguished period, and pursued unalterably through every change of ministers, too plainly prove a deliberate, systematical plan of reducing us to slavery.” 

Jefferson, who was himself a slaveowner, did not use the word slavery lightly.  He shared with fellow American Patriots – and with their radical Whig friends in Britain – a political philosophy that held that governmental power inherently threatened individual liberty.  As English radical Whig writers of an earlier generation – the political writers John Trenchard and Thomas Gordon, writing under the pseudonym “Cato” in the 1720s – put it, “Liberty” meant “to live upon one’s own Terms,” while “Slavery” is “to live at the mere Mercy of another.”  When the British Parliament passed a law like the Declaratory Act, asserting its claim to “bind the colonies and people of America . . . in all cases whatsoever,” it was essentially declaring its intent to treat them as slaves.   Everything that Parliament did – including relatively innocuous legislation like the Quebec Act of 1774 (which was designed to modify the form of government in French Canada to make it more palatable to its inhabitants, including recognition of the French civil law system and freedom of worship for Roman Catholics) – was seen by Jefferson and his fellow Patriots as part of the British government’s design to enslave America.  (This was the “despotism dangerous to our very existence” that the 1775 Declaration maintained Parliament had erected in “a neighbouring Province.”) 

It took time for Americans to give up the last tie that bound them, psychologically, to Britain:  their sense of loyalty to the King, coupled with their patriotism.  “British Americans” had been proud subjects of King George III, proud citizens of the British Empire, ruled under a legal system (as they understood it) that was the best ever devised by man.  For a period of over a decade, since the end of the French and Indian War in 1763, however, they had begun to realize that the British system of government was not perfect, not even close, as it threatened many of the rights they held so dear.  When King George obstinately opened the new session of Parliament in fall 1774 – declaring “the die is now cast,” that he would use military force to rigidly enforce all Parliamentary laws on colonial Americans – he crushed whatever hopes idealists like Jefferson may have had that the King somehow would intervene with Parliament (and his own ministers) to uphold American rights.  Publication of Thomas Paine’s provocative pamphlet Common Sense – which ridiculed the very idea of monarchy and asserted that it was ridiculous for the millions of people in North America to be governed by a European island nation thousands of miles away – helped many Americans become comfortable with the notion of their own political independence.  “British Americans” would become, simply, “Americans.” 

Americans took up arms in defense of their liberties in 1775; a year later, they continued the armed conflict against the British king’s forces, not merely to vindicate their rights under the British constitution but to win their rights, under “the laws of nature and of nature’s God.”  Those laws, as the Declaration of Independence would say, “entitle” them to “a separate and equal station” among the nations of the earth.  In other words, independence.

 

 

      | Link to this Entry | Posted Monday, June 27, 2005 | Copyright David N. Mayer