by Jill Lepore
When Cornwallis surrendered at Yorktown, 60,000 Loyalists raced to get behind British lines. Knowing their property would be seized, if it hadn’t been already—or that they themselves would be seized, as someone else’s property—they chose to leave the United States for Britain or for other parts of its empire. They headed to New York, Savannah, or Charleston, cities still held by the British, and from which they would soon be disembarking. Out of 9,127 Loyalists who sailed from Charleston, 5,327 were fugitive slaves. In Virginia, the 2,000 black soldiers under Cornwallis’s command who had survived the siege, described as “herds of Negroes,” trudged through swamps and forests in hopes of reaching a British warship that Washington, under the terms of the surrender, had agreed to allow to sail to New York. They suffered from exhaustion; they suffered from hunger; they suffered from disease. Of thirty people who escaped Thomas Jefferson’s Monticello, fifteen died of smallpox before reaching Cornwallis. Other fugitive slaves fled to the French. “We gained a veritable harvest of domestics,” wrote one surprised French officer. Armed slave patrols pursued the fugitives, capturing hundreds of Cornwallis’s soldiers and their families, including two people owned by Washington and five owned by Jefferson. In the race to reach British lines, pregnant women ran, too, in hopes that their newborns would earn their freedom papers in the form of a “BB” certificate: “Born Free Behind British Lines.”90
Reaching New York or Charleston or Savannah was only the beginning of the journey. In New York, Boston King, a runaway from South Carolina, heard a rumor that all the slaves in the city, some two thousand, “were to be delivered up to their masters,” and he was haunted by fear of American slave owners marching through the city, “seizing upon their slaves in the streets, or even dragging them out of their beds.” King, a carpenter, wrote in his memoirs that blacks in the city were too frightened even to sleep. A Hessian officer reported that as many as five thousand slave owners entered the city to recapture their slaves. George Washington had in fact ordered the keeping of the “Book of Negroes” so that owners might later seek compensation for slaves carried off in British ships. In Charleston, soldiers patrolled the wharves to hold back the hundreds of people desperately seeking to realize what would be, for most of them, their last chance at securing the blessings of liberty for themselves and their posterity. Despite the patrols, dozens of people leapt off the docks and swam out to the last longboats heading to the British warships, including the aptly named Free Briton. The swimmers grabbed the rails of the crowded boats and tried to climb aboard. When they would not let go, the British soldiers on the boats tried to hack off their fingers.91
The Revolution was at its most radical in the challenge it presented to the institution of slavery and at its most conservative in its failure to meet that challenge. Still, the institution had begun to break, like a pane of glass streaked with cracks but not yet shattered. In January 1783, when Lafayette heard that the commissioners in Paris were near to arriving at a peace treaty, he wrote to Washington to congratulate him and to propose that together they finish work the Revolution had begun. “Let us unite in purchasing a small estate, where we may try the experiment to free the negroes,” he suggested. “Such an example as yours might render it a general practice; and if we succeed in America,” they could bring the experiment to the West Indies. “I should be happy to join you in so laudable a work,” Washington wrote back, saying that he wished to meet to discuss the details.92
No thinking person was unaffected by the challenge the struggle for liberty posed to the institution of slavery, America’s Achilles’ heel. In Philadelphia in 1783, James Madison, leaving Congress, was packing up, preparing to return to Montpelier. He wasn’t sure what to do about Billey, a twenty-three-year-old man that he’d brought with him from Virginia when he’d first come to serve in Congress. Billey had been Madison’s property since his birth in 1759, when Madison was eight years old. In 1777, the Pennsylvania legislature passed the first abolition law in the Western world, decreeing that any child born to an enslaved woman after March 1, 1780, would be free after twenty-eight years of slavery, and banning the sale of slaves. New York’s John Jay declared that to oppose emancipation would be to find of America that “her prayers to Heaven for liberty will be impious.”93 In 1782, the Virginia legislature passed a law that allowed slave owners to free their slaves: one Virginia Quaker said, upon manumitting his slaves, that he had been “fully persuaded that freedom is the natural Right of all mankind & that it is my duty to do unto others as I would desire to be done by in the Like Situation.”94 Not many followed his lead. In 1782, Madison had bought a cache of books in Philadelphia, including a copy of Hobbes’s Leviathan, even though short of cash and complaining that he would soon be “under the necessity of selling a negro,” meaning Billey.95
The terrible irony of the man who would draft the Constitution selling a man to buy philosophy was prevented by the terms of Pennsylvania’s 1780 abolition law. Madison could not, in fact, sell Billey in Philadelphia. And in 1783, as he prepared to leave Philadelphia for Virginia, it was by no means certain, under Pennsylvania law, that he had any legal right to force Billey to go with him, either. “I have judged it most prudent not to force Billey back to Virginia even if it could be done,” Madison reported to his father. “I am persuaded his mind is too thoroughly tainted to be a fit companion for fellow slaves in Virginia.” That is, Billey, having spent three and a half years serving Madison in Philadelphia, a city where many black people were free, would be a problem on a plantation: he would incite rebellion. Trade in slaves was illegal in Pennsylvania. Madison might have tried to smuggle Billey out of the state, to sell him farther south, or into the Caribbean, but, he told his father, he was unwilling to “think of punishing him by transportation merely for coveting that liberty for which we have paid the price of so much blood, and have proclaimed so often to be the right, and worthy pursuit, of every human being.” In the end, Madison decided to sell him, not as a slave but as an indentured servant, with a seven-year term. Billey renamed himself William Gardener, served out his seven-year term, became a free man, worked as merchant’s agent, and raised a family with a wife who, when Jefferson was in Philadelphia, washed Jefferson’s clothes.96
Gardener found his freedom in Philadelphia. Other men and women met more clouded fates. Nearly thirty thousand Loyalists had sailed from New York to Nova Scotia, among them Harry Washington. Washington settled in Nova Scotia with some fifteen hundred families, the largest free black community in North America, where they flocked around a Methodist preacher named Moses Wilkinson and a Baptist named David George. But, living alongside twelve hundred black slaves brought to Nova Scotia by white Loyalists, the free black community faced continuing challenges. “The White people were against me,” George reported. After he attempted to baptize a white man and woman, a white mob tackled him on his pulpit. “It is known by experience that these Persons brought up in Servitude and Slavery want the assistance and Protection of a Master to make them happy,” wrote one white Nova Scotian, of free blacks. Swindlers took over their land allotments, selling off “ye Black men’s ground,” as one surveyor observed with dismay, without “even a shadow of a license.” The free black community began to wither. “Many of the poor people were compelled to sell their best gowns for five pounds of flour, in order to support life. When they had parted with all their clothes, even to their blankets, several of them fell down dead in the streets, thro’ hunger,” Boston King reported. “Some killed and ate their dogs and cats.”97 It was as terrible a disaster as Jamestown.
While American exiles struggled to survive in Canada, Benjamin Franklin was in Paris, negotiating the terms of the peace. “A Grate work Indeed you have Done God be Praised,” his sister Jane wrote to him.98 In September 1783, the American delegation signed the Treaty of Paris. Britain agreed to recognize the independence and sovereignty of the United States. The Americans agreed to make good on debts to British creditors. There were arrangements made for Loyalists
and their property, and for the release of prisoners of war. Spain and France were largely cut out of the negotiations, and got very little from them, while Britain ended up with a very different and more far-flung empire than it had in 1775.
The terms of the peace cut the number of African slaves in Britain’s empire in half, which meant that the antislavery movement in England gained a more attentive audience, and the proslavery lobby was vastly weakened. Quite the reverse applied in the United States. In the aftermath of the American Revolution, slave owners in states like South Carolina gained political power, while slave owners in the West Indies lost it. West Indian planters were outraged by Britain’s decision to forbid trade between the islands and the United States, a decision that led to riots. A sizable number of the freed slaves who left the United States for other parts of the British Empire ended up in the Caribbean. In Jamaica, they began demanding the right to vote: they argued that taxation without representation was tyranny. In the end, the American challenge to empire contributed to a political and moral critique of slavery that was felt far more deeply in the British Empire than in the United States.99
The peace made, George Washington rode on a gray horse into the city of New York, where a flag of thirteen stripes and stars had been raised on a pole in Battery Park. Only hours before, the British flag had waved. The last British troops had left the city, occupied since 1776, the last British ship not yet quite out of sight. The city erupted in jubilation as Washington and his soldiers rode down Broadway. That night, Washington went to a tavern for a public dinner, where he raised his wine glass and offered thirteen toasts, to the new nation, to liberty, to America’s allies, and more. “To the memory of those heroes who have fallen for our freedom!” And: “May America be an Asylum to the persecuted of the earth!” And finally: “May the remembrances of the day be a lesson to princes.”100
England would have no slaves. And America would have no king.
Four
THE CONSTITUTION OF A NATION
Printers published the proposed Constitution as a broadside but also included it in newspapers, almanacs, and pamphlets.
JAMES MADISON, THIRTY-SIX, BOOKISH, AND WISE, reached Philadelphia on May 3, 1787, eleven days before the constitutional convention was meant to begin. He settled into his old rooms at Mrs. House’s hotel, a boardinghouse at Fifth and Market Streets, where he’d stayed during meetings of the Continental Congress. To prepare for the convention, he reviewed his notes on the construction of republics. George Washington arrived on May 13, on the eve of the convention, not nearly as quietly, greeted by crowds, the pealing of church bells, a regiment of cavalry, and a thirteen-gun salute. When Washington reached Mrs. House’s, where he’d planned to stay, the wealthy Philadelphia merchant Robert Morris met him there and insisted that Washington stay at his lavish mansion, a few blocks away. The next morning, Washington and Madison walked together to the Pennsylvania State House through a tender mist.1
Very few of the delegates had arrived. “There is less punctuality in the outset than was to be wished,” Madison wrote to Jefferson, in Paris, on May 15, brooding.2 Delay or no delay, from the start of the proceedings, Madison took careful notes, certain “of the value of such a contribution to the fund of materials for the History of a Constitution on which would be staked the happiness of a young people.” Past an arched doorway, in the Assembly Room of the State House, its tall windows flooding the room with light, the convention met from May 14 to September 17, from a season of planting to a season of harvest. Madison didn’t miss a single day, “nor more than a casual fraction of an hour in any day,” he explained, “so that I could not have lost a single speech, unless a very short one.”3
Madison spoke softly and haltingly, the very opposite of the way he wrote. He was making a record for himself, and he was also writing down what happened in Philadelphia that summer for Jefferson. Ever since Jefferson left the country, in 1784, Madison had been taking notes of congressional deliberations for him, too. But Madison understood that, above all, he was making a record for posterity, a record of how a constitution had come to be written.
To constitute something is to make it. A body is constituted of its parts, a nation of its laws. “The constitution of man is the work of nature,” Rousseau wrote in 1762, “that of the state the work of art.”4 By the eighteenth century, a constitution had come to mean “that Assemblage of Laws, Institutions and Customs, derived from certain fix’d Principles of Reason . . . according to which the Community hath agreed to be govern’d.”5 Englishmen boasted that “England is now the only monarchy in the world that can properly be said to have a constitution.”6 But England’s constitution is unwritten; instead of a single, written document, England’s constitution is the sum of its laws, customs, and precedents. In a debate with the conservative Edmund Burke, Thomas Paine suggested that England’s constitution did not, in fact, exist. “Can, then, Mr. Burke produce the English Constitution?” Paine asked. “If he cannot, we may fairly conclude that though it has been so much talked about, no such thing as a constitution exists, or ever did exist.”7 In America’s book of genesis, the constitution would be written, printed, and preserved.
Centuries of speculation about a state of nature—a time before government—came to an end. It was no longer necessary to imagine how a people might erect a government: this could be witnessed. “We have no occasion to roam for information into the obscure field of antiquity, nor hazard ourselves upon conjecture,” Paine wrote. “We are brought at once to the point of seeing government begin, as if we had lived in the beginning of time.”8 It was with this in mind that Madison proved so careful a historian. It was as if he were living at the beginning of time.
I.
THE CONSTITUTION OF the United States was not the first written constitution in the history of the world. The world’s first written, popularly ratified constitutions were drafted by the American states, beginning in 1776. Having dismantled their own governments, they took seriously—literally—the idea that they needed to create them anew, as if they had been returned to a state of nature.
Three states had adopted written constitutions even before Congress declared independence from England, because they found themselves otherwise without a government. “We conceive ourselves reduced to the necessity of establishing A FORM OF GOVERNMENT,” a Constitutional Congress convened in New Hampshire declared in January 1776, after the Loyalist governor of New Hampshire fled the state, along with most members of his council.9 Eleven of the thirteen states devised constitutions in 1776 or 1777. The work of writing these constitutions, Jefferson noted in 1776, was “the whole object of the present controversy.”10
Most state constitutions were drafted by state legislatures; others were written by men elected as delegates to special conventions. In the spring of 1775, the irascible John Adams had urged Congress “to recommend to the People of every Colony to call such Conventions immediately and set up Governments of their own, under their own Authority; for the People were the Source of all Authority and the Original of all Power.” New Hampshire had been the first to act. It was the first state to submit its constitution to the people for ratification, a process whose outcome was far from inevitable. In 1778, when the Massachusetts legislature drafted a constitution and presented it to the people for ratification, the people rejected it, and called for a special convention, which was held in Cambridge in 1779; Adams, one of its delegates, was the chief author of a new constitution that the people of Massachusetts ratified in 1780. That this act—the people voting on the very form of government—represented an extraordinary break with the past was not lost on Adams, who wrote, “How few of the human race have ever enjoyed an opportunity of making an election of government, more than of air, soil, or climate, for themselves or their children!”11
Each of the states was a laboratory, each new constitution another political experiment. Many state constitutions, like those of Virginia and Pennsylvania, included a Declaration of Rights. Pennsylvani
a’s, written in September 1776, began by echoing the preamble to the Declaration of Independence, establishing “That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.” Massachusetts’s constitution insisted on a right to revolution, decreeing that when the government fails the people, “the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.”12
For all the veneration of the “people,” the word “democracy” retained an unequivocally negative connotation. Eighteenth-century Americans borrowed from Aristotle the idea that there are three forms of government: a monarchy, an aristocracy, and a polity; governments by the one, the few, and the many. Each becomes corrupt when the government seeks to advance its own interests rather than the common good. A corrupt monarchy is a tyranny, a corrupt aristocracy an oligarchy, and a corrupt polity a democracy. The way to avoid corruption is to properly mix the three forms so that corruption in any one would be restrained, or checked, by the others.
Between a government too monarchical and a government too democratic, Massachusetts lawyer and later member of Congress Fisher Ames would have rather had the former. “Monarchy is like a merchantman, which sails well, but will sometimes strike on a rock, and go to the bottom,” Ames wrote in 1783, “whilst a republic is a raft, which would never sink, but then your feet are always in the water.”13
Unlike the harrumphing Ames, many of the people who were drafting state constitutions apparently preferred to err on the side of democracy. In framing new governments, several states lowered property qualifications for voting. Under the terms of Pennsylvania’s new constitution, any man who had lived in the state for a year and paid taxes—any taxes—could vote: where earlier two-thirds of white men could vote, 90 percent now could. Yet many men of means found this development alarming, believing that poor men, like women, lacked the capacity to make good political decisions because, dependent on others, their will was not their own. Massachusetts’s constitution included property qualifications both for office seekers and for voters. As Adams explained, “Such is the Frailty of the human Heart, that very few Men, who have no Property, have any Judgment of their own.”14
