Thus, states rights, slavery, and liberty were inextricably linked in the 1774 Declaration of Rights and Grievances.
The Continental Congress was presented with a serious and powerful alternative to the Adams-Rutledge provision by Joseph Galloway of Pennsylvania supported by James Duane of New York. This presentation came on September 28, while the Adams-Rutledge declaration was being debated by the Congress. Galloway’s alternative was to create an American colonial parliament, which, with the British parliament, could legislate on matters affecting the colonies.33
The “American Parliament” was to be an “inferior and distinct” branch of Parliament. A president-general, appointed by the king, with the advice and consent of the “Grand Council” chosen by representatives of colonial legislatures, would:
hold and exercise all the legislative rights, powers, and authorities necessary for regulating and administering all the general police and affairs of the colonies, in which Great Britain and the colonies, or any of them, the colonies in general, or more than one colony, are in any manner concerned, as well civil and criminal as commercial.34
The approval of both the American and British Parliaments would be necessary for the adoption of “all such general acts and statutes,” under Galloway’s plan. Thus the plan fully addressed all expressed northern concerns: the grievance concerning taxation without representation, the quartering and support of British troops without consent, as well as the closing of the port of Boston and the other Coercive Acts. These things could not take place without the agreement of the colonies acting within the “British-American Parliament.”
It gave the American Parliament a veto over such legislation and made clear that Britain could not rule the colonies without their consent. It effectively answered all issues concerning taxation or anything else that might be done “without representation” by the colonies. It was carefully crafted to meet the issue of representation by reducing Britain’s ability to control the colonies. It would repeal the Declaratory Act of 1766 that so upset many colonists.
At the same time it retained the basic structure of the empire. It permitted joint British-American parliamentary legislation concerning a wide range of matters. Under the plan the “joint” parliament could exercise legislative power asserted in the Declaratory Act over “all cases whatsoever.” The joint parliament could adopt “positive law” as well as the British Parliament. The institution of slavery fell squarely within the jurisdictional grant proposed by Galloway because it fit the definition of:
affairs of the colonies, in which Great Britain and the colonies, or any of them, the colonies in general, or more than one colony, are in any manner concerned, as well civil and criminal as commercial.
The Preamble to Galloway’s plan stated that “within and under [the British-American] government each colony shall retain its present constitution and powers of regulating and governing its own internal police in all cases whatsoever.” (emphasis added)35 Galloway’s plan accepted the British claim to Parliament’s overriding power but expanded the Parliament to include representatives of the American colonies, thus meeting the demand for colonial representation.
While the issue of “taxation without representation” was fully addressed, the risks to slavery were not. The South could not assume that the colonial representatives to the Parliament would always vote to protect slavery. Antislavery views of the northern and middle states might prevail among the “American” delegation to the Parliament.36 The South had little reason to trust Massachusetts, Rhode Island, or Pennsylvania more than the British Parliament, on the slavery question.37
Virginia delegates Richard Henry Lee and Patrick Henry raised this issue sharply in the debate on September 28 when Galloway’s plan was introduced. Lee exercised the veto power that Virginia had built into the instructions to its delegates. He told Congress that Galloway’s plan, “would make such changes in the legislatures of the colonies that I could not agree to it without consulting my constituents.” His constituents had already spoken in the Virginia instructions to the delegates demanding for each colony the “sole right of directing their internal polity.”38
John Jay of New York defended the plan, maintaining that it did not interfere with any liberty or right of the colonists:
It is objected that this plan will alter our constitutions and thereafter cannot be adopted without consulting constituents.
Does this plan give up any one liberty— or interfere with any one right?
But the argument that the plan did not “give up” any liberties or rights could not succeed against those who sought liberty from any superior parliament as the Virginians did.
Patrick Henry made this clear in his pithy rebuttal. Under the plan, he said:
We shall liberate our constituents from a corrupt House of Commons, but throw them into the arms of an American legislature that may be bribed by that nation which avows in the face of the world that bribery is a part of her system of government.…We are not to consent by the representatives of representatives. (emphasis added)39
This last sentence made clear that Henry—and through him Virginia—would not admit of supervision of the colonies by any government, even one that included other American colonies.40 The Galloway plan, on its surface, preserved the supremacy of an expanded parliament, including its jurisdiction over slavery.41 The Virginia instructions prohibited any governmental body, British, American, or joint, from obtaining jurisdiction over the internal affairs of Virginia. Lee and Henry succeeded in burying the Galloway plan.42
As previously shown, the Galloway plan was a powerful counter to the Adams-Rutledge language of Article IV because it fully satisfied the “taxation without representation” issue. The colonists could well assume that their fellow colonies would be alert to ward off any British taxation scheme that offended them. But, as Patrick Henry suggested, the southern colonists would not assume that the same thing would be true when the British raised questions about slavery. The northern and middle colonies might conclude that their self-interest lay in limiting or eliminating slavery. The clearest evidence that the South insisted on independence in its internal affairs from any “superior” legislative body lies in the rejection of the Galloway plan.43
Six colonies voted to give further consideration to the Galloway plan at the end of the sharp debate on September 28, but no such direct consideration ever took place. Adams had dinner that day with a large company at Richard Penn’s house, considered the single best house in the city. He spent the evening at home with Richard Henry Lee, Dr. Shippen, and George Washington.
This was the first known intimate contact between Adams and Washington.44 The meeting took place following a debate in which Galloway’s supporters suggested his opponents favored separation from Britain. It was crucial for the future relations between the Massachusetts and Virginia delegations. Washington, not yet committed to revolution, needed to believe that Adams and his delegation were not seeking separation from Britain. Adams gave Washington that assurance, and Washington believed him. The success of that meeting was reflected in Washington’s correspondence with Lieutenant Robert McKenzie, who had served under him since 1755 and was then stationed in Boston with General Gage’s forces. McKenzie described Massachusetts as:
this unhappy province,…their tyrannical oppression over one another,…their fixed aim at total independence, of the weakness and temper of the main springs that set the whole in motion, and how necessary it is that abler heads and better hearts should draw a line for their guidance: even when this is done ’tis much to be feared they will follow it no further than where it coincides with their present sentiments.…
The rebellious and numerous meetings of men in arms, their scandalous and ungenerous attacks upon the best characters in the province, obliging them to save their lives by flight, and their repeated but feeble threats to dispossess the troops, have furnished sufficient reasons to General Gage to put the town in a formidable state of defense, about which we are no
w fully employed.
Washington responded on October 9, from Philadelphia. He expressed “pleasure” receiving McKenzie’s letter, and invited him to visit Mount Vernon. He then, “with the freedom of a friend,” wrote:
I view things in a very different point of light to the one in which you seem to consider them, and though you are led to believe by venal men…that the people of Massachusetts are rebellious, setting up for independency, and what not,…you are abused—grossly abused; and this I advance with a degree of confidence…having better opportunities of knowing the real sentiments of the people you are among, from the leaders of them, in opposition to the present measures of administration, than you…I can announce it as a fact, that it is not the wish, or the interest of the government, or any other upon this continent, separately, or collectively, to set up for independence; but…none of them will ever submit to the loss of those valuable rights and privileges which are essential to the happiness of every free state, and without which life, liberty, and property are rendered totally insecure.45
Washington may have reached this judgment through his discussions with John Adams. Adams was clearly accepted by Washington as a patriot seeking redress within the empire, not as a revolutionary. Rush’s advice on Adams’s arrival that he should be discrete had proved to be correct.
From October 12 to 14, Congress debated the Declaration of Rights and Grievances, including Article IV, as drafted by Adams. As of October 13, Congress was evenly divided on the question of parliamentary power to regulate trade. Adams reported that five colonies were for allowing Parliament’s participation, five were against, and two divided among themselves, i.e. Massachusetts and Rhode Island.46 But on October 14, Congress resolved the issue against the principles of the Galloway plan by adopting the declaration that denied any parliamentary power over the colonies.47 This decision effectively killed Galloway’s proposal. His plan was not further considered. He complained bitterly for years from England that it had not appeared in the public record because his opponents had not wanted it discussed.48
In retrospect, it is clear that the fundamental difference between Galloway and Adams lay in the fact that Galloway insisted on basing his analysis on British law, while Adams had moved to the principles of “natural law.” The concept of natural law developed by John Locke in his Second Treatise on Government was premised on an assumed equality of all members of a society who then consented to form a government to protect their individual interests.49 Locke presented a challenge to arguments for the divine right of kings. The Virginians, already suffering the sting of the Somerset decision under English law, were also prepared to abandon English law as the basis for separation from Britain. Once the colonists took the step that both Adams and Jefferson adopted—moving to a natural law principle to support the Revolution—it was easier to emphasize the principle of equality than it would have been under the British monarchial system.”
Had the delicate balance in Philadelphia tipped the other way—had the Galloway plan or something like it been adopted—the Revolution might have been avoided. The magical images in Jefferson’s Declaration might never have been written, and authority in the people might not have become the foundation of America.
Chapter 7
* * *
The Immortal Ambiguity: “All Men Are Created Equal”
* * *
The year 1775 saw the beginnings of war as the British responded to the 1774 Continental Congress declaration of independence from Parliament. British forces sought out caches of colonial gunpowder in Lexington and Concord, nearly capturing John Adams and John Hancock, a wealthy merchant who had been active in Revolutionary affairs and who would be president of the Continental Congress. The British fired on local militia, but were forced to retreat to Boston. During the retreat, they were severely mauled by armed farmers.
At about the same time, the Virginia governor, Lord Dunmore, had his royal marines remove gunpowder from the powder magazine in Williamsburg to the schooner Magdalen. Militia men under the direction of Patrick Henry demanded that he return the gunpowder to an arsenal on land so that the colonists could get at it. Dunmore refused, but to avoid a march on Williamsburg, gave his note for £330 to cover the cost of the gunpowder.1
The Second Continental Congress meeting in Philadelphia in 1775 began to conduct war against the British in Boston. British governance of the colonies was in shambles. In the fall of 1775, Lord Dunmore, unable to cow the Virginians who had established their own militia, promised to free all slaves who would join him in his struggle to maintain control of the colony:
I do require every person capable of bearing arms, to resort to His Majesty’s standard, or be looked upon as traitors to His Majesty’s crown and government, and thereby become liable to the penalty the law inflicts upon such offenses; such as forfeiture of life, confiscation of lands....And I do hereby further declare all indented servants, Negroes, or others (appertaining to rebels) free that are able and willing to bear arms, they joining His Majesty’s troops as soon as may be, for the more speedily reducing this colony to a proper sense of their duty to His Majesty’s crown and dignity.2
Historian John C. Miller wrote, “To Virginians this was nothing less than a call for race war.”3 Dunmore’s approach was supported by Samuel Johnson in Britain, who wrote that it would be cheaper and easier to subdue the colonies by encouraging slave uprisings than to send a large military force.4 Many slaves took up the offer of freedom and joined Dunmore’s forces. Landon Carter, probably the richest slave holder in Virginia, was frustrated by the rebellion of eight of his slaves, but bragged that in their leaving, they had not touched anything belonging to his person.5 Dunmore’s action confirmed colonial fears that the British would use the colonies for their own purposes, even to the extent of prompting slaves to murder their masters.
Virginia responded by offering amnesty to those slaves who returned, and death to those who fought against it:
Whereas, by an act of the general assembly now in force in this colony, it is enacted that all Negro or other slaves, conspiring to rebel or make insurrection, shall suffer death and be excluded all benefit of clergy. We think it proper to declare that all slaves who have been, or shall be seduced by his lordship’s proclamation, or other arts, to desert their masters’ service, and take up arms against the inhabitants of this colony, shall be liable to such punishment as shall hereafter be directed by the general convention. And to that end all such who have taken this unlawful and wicked step may return in safety to their duty and escape the punishment due to their crimes, we hereby promise pardon to them, they surrendering themselves to Col. William Woodford, or any other commander of our troops, and not appearing in arms after the publication hereof. And we do farther earnestly recommend it to all humane and benevolent persons in this colony to explain and make known this our offer of mercy to those unfortunate people.6
In late 1775, the Continental Congress urged the colonies to adopt their own constitutions to fill a vacuum left by the absence of government.7 Starting in the autumn of 1774, Massachusetts became ungovernable; the courts could not operate, juries would not serve, and the milita was training. Other states began arming themselves and ignoring the existing governments.8 On May 15, 1776, a Virginian convention, called to shape a new government for the state, instructed its delegates to the Second Continental Congress in Philadelphia to propose that Congress declare independence from Great Britain.9
On June 7, Richard Henry Lee made the motion. A vote was delayed while the delegates from several colonies sought permission to approve it. In the interim, a committee of five members was formed to draft a declaration of independence. Members of the committee were John Adams, Benjamin Franklin, Thomas Jefferson, Robert Livingston of New York, and Roger Sherman of Connecticut. The committee outlined the structure for the declaration, and assigned the initial drafting to Jefferson. He worked in haste and under serious time pressures while worrying about the health of his wife Martha back at Monticello.10
Jefferson modestly said that he had not attempted any original statement, but was only reflecting views current in the society. He did not consider his draft to be of value in the “originality of principles or sentiments, nor yet copied from any particular and previous writing. It was intended to be an expression of the American mind....All its authority rests on the harmonizing sentiments of the day.”11 This modesty was without foundation, as we shall see.
Jefferson closely followed the events that transpired at the Virginia Convention while he was preparing his draft of the Declaration of Independence. He viewed himself as a Virginian, and always remained attuned to his political base among the slave owning planter-lawyers of the Virginia elite.12 In this instance, he was wise to pay such close attention.
The Virginia Convention, after proposing that America declare independence, asked George Mason, a well-loved older planter, to draft a declaration of rights and principles of government for Virginia. Mason was forty-eight years old and had long taken an interest in patriot causes, but had not previously engaged openly in politics because he despised most aspects of it. Mason was not a lawyer, but had studied deeply the principles that lay at the base of colonial differences with Britain.13 His draft was reviewed and approved by a small committee, probably because it was a pure statement of the natural law principles made popular by John Locke.14 It was then circulated among the delegates in preparation for a discussion that began on May 29, 1776. It was made public and circulated so widely through the colonies that it became the model for several state constitutions.15 But it was not popular with the Virginia Convention.
The first paragraph of Mason’s declaration read:
All men are born equally free and independent and have certain inherent natural rights of which they cannot, by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.16
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