Conceived in Liberty (246 page)

The British had decided to center their operations in 1778 on an amphibious expedition of 5,000 of Clinton’s men against St. Lucia in the West Indies. The arrival of D’Estaing’s fleet forestalled this attack, Clinton was not authorized to take offensive action on land, and so the 1778 campaign was frittered away.

*
Felix Gilbert,
To the Farewell Address: Ideas of Early American Foreign Policy
(Princeton: Princeton University Press, 1961), p. 52.

*
See Gilbert,
Farewell Address,
p. 63.

**
Ibid
., pp. 65–66, 69.

*
Robbins,
The Eighteenth Century Commonwealthman,
pp. 337, 340.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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