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A Constitutional History of the United States
Chapter IX - The Congresses of 1774-1775
by McLaughlin, Andrew C.

The treatment of Boston aroused the colonists to a new pitch of resentment and to new unity of action. The first step for a continental congress seems to have been taken by Virginia, but the idea was Variously proposed. The call or suggestion of Virginia was acted upon in the summer of 1774.[1] Delegates were chosen by different methods, but largely through the agency of the committees of correspondence, those irregular but effective bodies fitted for the task of maintaining popular rights and, if need be, for bringing on revolution.[2] Formal procedure by the colonial legislature was, in nearly every case, not taken and would have been difficult, for there was not only official opposition in most of the colonies, but among the timid or conservative much objection to radical measures. The Congress was therefore decidedly and obviously an extra-legal body; save that it was not chosen to foster revolution, it might well be considered a revolutionary body — composed as it was of representatives who in most instances were not even chosen by the popular branch of the colonial legislatures.[3] In no formal sense, therefore, was the gathering representative of existing colonial governments; it represented the people, the dissatisfied elements of the people, such persons as were sufficiently interested to act, despite the strenuous opposition of the conservatives and, in general, the obstruction or disfavor of the governors.

When the Congress met in Carpenters' Hall, Philadelphia, in early September,[4] what were its tasks? The country was by no means united. The conservatives were growing fearful; many of those who strongly objected to Britain's measures were anxious to reach some means of reasonable adjustment of difficulties; the radicals were active and skillful. But the instructions or declarations of opinions which were drafted by the gatherings that sent the delegates were by no means inducements to precipitate rebellion. One question had to be solved: what principles were to be proposed that would, to use the words of Rhode Island, "establish the rights and liberties of the Colonies, upon a just and solid foundation"?

Even those delegates who were intent upon opposition to parliamentary taxation and were indignant at the treatment of Boston were not in accord concerning methods of procedure or concerning any theory of the constitution of the empire, if the empire was to exist at all. But the time had come when there must be more than complaint; there was need of a fairly decisive statement of constitutional order. The more advanced were ready and anxious to go the whole road, short of casting off the power of the king; but others held back.

John Adams tells us more clearly than the Journals, and probably quite as accurately, what the difficulties were. In the committee of which Adams was a member there was much discussion concerning the basis of American rights. Should it "recur to the law of nature, as well as to the British constitution, and our American charters and grants"?[5] This problem did not, however, prove supremely difficult; it was easy enough to lay claim to all these foundations of freedom; but that did not end the matter; for, as Adams says, "The other great question 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." A subcommittee of which Adams was a member met and debated the pivotal questions. Seemingly without great difficulty all the articles of its report were agreed upon "excepting one, and that was the authority of Parliament, which was indeed the essence of the whole controversy...." [6] Finally, the agreement appearing in the fourth resolution of the "Declaration and Resolves" was reached. It declared that the colonies were "entitled to a free and exclusive power of legislation in their several provincial legislatures ... in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But, from the necessity of the case, and a regard to the mutual interest of both Countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits to its respective members; excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America, without their consent." [7]

This resolution appears to be essentially a compromise; [8] it did not acknowledge the legal power of Parliament even to regulate trade, but it consented to the operation of acts for that purpose. Furthermore, it did not repudiate control by the royal prerogative, which was indeed explicitly acknowledged in the address to the king a few days later.[9] There was a distinct acknowledgment of the "negative of their sovereign," which presumably meant disallowance, by the king in council. In the "address to the people of Great-Britain", the Congress said, "Place us in the same situation that we were at the close of the last war, and our former harmony will be restored." [10] Thus, as far as constitutional theory was concerned, a continental Congress could not go much further than had the Congress of nine years before. There were, it is true, many who were willing to go further; but the Congress was not prepared to pass on to a total and explicit denial of parliamentary authority; and, be it noticed, the old fact and the old practices were still on the whole dominating.

That the colonists, so far as Congress represented their true feelings, were in a temper easily to be changed into actual rebellion is apparent from the proceedings at Philadelphia. But it was still a rebellion against abuses of parliamentary authority, a rebellion to retain, in the empire and under the king, the constitutional rights which were claimed on the basis of the colonial charters and the English constitution. If, however, the British government should persist, the colonists must soon deny the authority of Parliament altogether and soon move on to rebellion against the king himself.

The Congress did not present any theory of empire or set forth any scheme of empire, though Joseph Galloway of Pennsylvania presented one.[11] But the resolutions did assert the legal title of the colonies to certain powers and privileges. Probably at that time, when men's minds were inflamed, it would have been impossible to do any piece of constructive work; for the organization of the empire required long and candid consideration and calm discussion. What the Congress did was to assert rights; it provided no real answer to the critical problem of the whole dispute — what plan could be arranged whereby there would be legal obligation, in freedom, upon the outlying parts of the empire to contribute to the defense and support of the empire? While it is not at all strange that such constructive work was not undertaken, we can reasonably assume that some men were considering it. The hope of having a legal system in which the colonies would have a legal share of power and a legal title to their rights was still in men's minds.

Of great consequence was the "Association", "a non-importation, non-consumption, and non-exportation agreement," [12] solemnly entered into by the colonial delegates before the Congress adjourned. If this could be loyally taken up and rigidly enforced, Britain, it was thought, would feel fully the force of American anger. Some portions of the undertaking were not to be put into effect at once. Throughout the colonies, from one end to the other, efforts to carry out the agreement were made, and contests of strength as well as of opinion were frequent. So nearly thorough were the provisions for the execution of the agreement that we may justly consider that the system of committees and the whole machinery constituted in a very marked degree the unification of the radical or the determined forces of the continent.

Here was union reaching out more widely and further down than previous schemes; and here was a method of securing results through the operation of committees.[13]

The winter of 1774 and 1775 was filled with distraction and with some uncertainty. We have been discussing the conflict of opinion between Britain and America; but that conflict was not all. Every colony, as we have seen, had its differences of opinion;[14] each had its own problems and its own experiences, and it is difficult therefore to use any terms of description quite applicable to all alike; and indeed the Revolutionary movement, the social and economic disturbances, the emergence of new leaders, the gleam of new aspirations among classes of men hitherto inactive or negligible in politics — all these are in some ways the most interesting and significant facts in the whole struggle.

Much more than separation from Britain or resistance to "intolerable acts" of a government across the sea was contained in the Revolution. Much social and political history is to be found in those disputes and controversies among the colonists during the years between the adoption of the "Association" and the outbreak of war and the final acceptance of independence.[15] It is not well to tell here the story of American resistance as if the colonies, each working smoothly within its own limits and in accord with the other colonies, presented a united front to Britain. Each one was internally undergoing very vital and on the whole life-giving though distracting experiences. Save in the self-governing colonies of Connecticut and Rhode Island, the actual management of the Revolutionary movements was passing into the hands of conventions or committees or provincial gatherings — governments outside of the legal government of each colony.[16] During two years or so before independence, therefore, essentially revolutionary governments had partially displaced the purely legal authorities; not that these governments, these extra-legal bodies, necessarily thought of themselves as revolutionary in character; for until toward the end they were not necessarily committed to the task of breaking the empire. They were determined to use popular power to maintain their rights against parliamentary exactions and misgovernment. The thought of complete independence was still almost frightful to many a man earnest in his advocacy of boycott and of hostility to the obnoxious laws of Britain.

Such a condition of affairs could not long continue. Peculiarly hard was the situation in Boston where British forces maintained their hold. There was much that was disorderly about the Revolutionary movement everywhere, but on the whole the calmness and the regularity with which the people of that stern old commonwealth persisted in rebellion without suddenly breaking into tempestuous and profitless rioting is impressive and very conclusive proof of their capacity for self-government. More acts came from Parliament to be heaped on their sullen heads [17] without drawing them into thoughtless outbreaks which might have ruined their cause. The crisis came on the nineteenth of April, 1775; Lexington and Concord, and the hurried retreat of the British troops — such of them as were not killed on the. way — back to the protection of their comrades at Boston signaled the beginning of war. At last, to use the pleasing phrase of Locke, there was an "appeal to Heaven".

When the Continental Congress gathered at Philadelphia on the tenth of May, 1775, war had already begun. The Massachusetts men had gathered about Boston and the British forces. What was Congress to do? It prepared, for war and prayed for peace; it organized an army, appointed Washington commander-in-chief, and sent off to George III a new address asking for justice. The hope of obtaining a redress of grievances without disruption of the empire was daily dwindling; there was a steady though varying forward movement toward independence. Lord North's "Conciliatory Resolution", passed by the Commons (February 27, 1775), was presented to the Congress in May; but it came too late; probably it would have been at no time satisfactory, because there was no abandonment of parliamentary power to "bind the colonies and people of America ... in all cases whatsoever." The proposals were rejected in July, and in August the king issued a "Proclamation of Rebellion".

The autumn and winter passed. In the spring (April 6, 1776) the Continental Congress passed resolutions which substantially established freedom of trade with all the world save Great Britain. The old navigation acts and with them the whole system of parliamentary control and regulation of trade were cast into the discard. With the passing of such resolutions, independence could not be far away.

[1] See C. R. Lingley, The Transition in Virginia From Colony to Commonwealth, pp. 81-82; A. M. Schlesinger, The Colonial Merchants and the American Revolution, 1763-1776 (Columbia University Studies in History, etc., LXXVIII), p. 363.

[2] "When the Continental Congress met, there is good reason to believe that it was looked upon as a meeting of the committees of correspondence of the several colonies...." Van Tyne, op. cit., pp. 427-428.

[3] In New Hampshire, delegates were chosen by "a meeting of the deputies appointed by the several towns" assembled for the purpose; in Massachusetts, by the house, after locking the door to prevent notice of dissolution by the Governor; in Rhode Island, where there were no royal officers in political control, by the general assembly; in Connecticut (likewise a free corporate colony), by the house which authorized the committee of correspondence to appoint delegates; in New York, "By duly certifyed polls, taken by proper persons, in seven wards of New York City and County," and by sundry other committees of outlying districts; in New Jersey, by a convention; in Pennsylvania, by the house; in Delaware, by a convention of we "Representatives of the freemen"; in Maryland, by a convention or a "Meeting of the Committees" from the counties; in Virginia, by a provincial convention; in North Carolina, by "a general meeting of deputies of the Inhabitants"; in South Carolina, by "a general meeting of the inhabitants" whose action was ratified by the house.

It is interesting to note that the basis of representation in the Congress came up for consideration as soon as the members began the task of organization. Should each colony have one vote or should the principles of proportional representation be adopted? A proposal "to establish an equitable representation according to the respective importance of each Colony", was not carried, and in its place it was decided that "each Colony or Province shall have one Vote. — The Congress not being possess'd of, or at present able to procure proper materials for ascertaining the importance of each Colony." September 6, 1774. Journals of the Continental Congress (W. C. Ford, ed.), I, p. 25. Hereafter referred to as Journals. Each colony should have "one voice; but as this was objected to as unequal, an entry was made on the journals to prevent its being drawn into a precedent." Connecticut Delegates to Governor Trumbull, October 10, 1774. Quoted in Ibid., I, p. 25, note 1.

[4] The first meeting was on September 5, 1774. There were present 45 delegates. Representatives from North Carolina appeared later, as did a few additional delegates from colonies represented at the beginning. The first volume of the Journals gives the proceedings with copious and learned notes by the editor. The "Autobiography" and "Diary" of John Adams published in the second volume of his Works are interesting and valuable for side lights on the meeting.

[5] The resolutions as finally adopted declared that the colonists "by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following Rights".

[6] John Adams, Works (C. F. Adams, ed.), II, p. 374.

[7] Journals, I, pp. 68-69.

[8] Of course, whether or not they denied in toto the authority of Parliament depends on the scope the reader may give to the words "internal polity". If those Words are interpreted as excluding entirely from parliamentary control such subjects as naturalization, coinage, the post office, etc. — in other words, those pieces of legislation which we now in our own system recognize as powers within the natural field of general government — then perhaps the conclusion must be reached that the colonies asserted their position as dominions of the king, utterly free, legally, from other control. But, it will be noticed, there was no definite declaration to the effect that Parliament at no time had any authority over them; and the absence of any such statement is to me indicative of hesitation to lay down absolutely plain legal theory. Cf. McIlwain, op. cit., pp. 116-117. Some writers and students may be misled by the wording of the first resolution as given in Select Charters (William MacDonald, ed.), pp. 358-359, the resolution there reading "they have never ceded to any foreign power whatever, a right to dispose of either [life, liberty, and property] without their consent." The word "foreign" should be "sovereign". Journals, I, p. 67; Journals of Congress (1823 ed.), I, p. 20. To object to "sovereign", in any complete sense, was characteristic of the colonial position. MacDonald's work is in general painstaking and accurate.

[9] "We wish not a diminution of the prerogative, nor do we solicit the grant of any new right in our favour." Journals, I, p. 119.

[10] Ibid., I, p. 89. The matter presented above is important for our purpose of following the main line of constitutional argument; but it should be noticed that certain essential rights of Englishmen were also asserted by the Congress: rights to the common law and trial by jury, the right peaceably to assemble and petition, and the right to be freed from the presence of a standing army in time of peace, except by consent of the legislature of the colony. It also asserted that it is necessary to good government that the constituent branches of the legislature be independent of each other and that the exercise of legislative power in the colonies by a council appointed, during pleasure, by the Crown, was unconstitutional and dangerous.

[11] Journals, I, p, 43 ff. Galloway especially pointed out the need of having some general authority in the empire with power to regulate commerce. See John Adams, Works, II, pp. 390-391.

[12] Adopted October 20, 1774. It was a most imposing and thoroughgoing document. Far more than a mere agreement, it provided for execution by calling for committees in every county, city, and town, for inspection by committees of correspondence, and for enforcement by the boycotting of profiteering merchants. It proposed to encourage frugality and to promote agriculture, to discountenance extravagance and dissipation, "especially all horse-racing, and all kinds of gaming, cock-fighting ... and other expensive diversions and entertainments...." Restraint even on the wearing of "mourning-dress" was called for.

[13] Had the Congress without interruption continued to sit and direct the activity of the various colonies, the method of organization and of action would have been strikingly like the present organization of a national political party — that organization which brings into harmonious co÷peration on a national scale the interests and the activities of the remotest hamlet and the wards and precincts of the large metropolis; that impressive manifestation of political union of continent-wide dimensions, a manifestation of machinery and of articulated organs more indicative of vital nationalism than the mechanism and operation of what we call the government.

[14] In 1774, the "Association" met determined opposition from the mercantile and moderate classes who disliked the violence and the democratic arguments of the radicals. See Schlesinger, op. cit., p. 432 ff.

"It should never be forgotten that in the eyes of the older men the Revolution was a conservative movement, an effort to uphold their liberties against the encroachments of imperialism. Eighteenth-century liberalism had little touched this older generation.... They wanted the gods to nod on Parnassus — or even to snore — but they wanted the gods. They thought English thoughts and upheld English institutions and condescendingly looked down on dissenters and democrats as not of themselves." Eckenrode, op. cit., pp. 158-159. See also, p. 160. The author is speaking chiefly of Virginia, but his words may be given a somewhat wider application.

[15] Attention is called to Eckenrode, op. cit.; C. H. Lincoln, The Revolutionary Movement in Pennsylvania 1760-1776; C. L. Becker, The History of Political Parties in the Province of New York, 1760-1776; J. F. Jameson, The American Revolution Considered as a Social Movement.

[16] Georgia was still largely outside of the general movement. It was represented by a delegate from one parish in the Congress of 1775, and later (September) by others chosen by a provincial congress.

[17] An act restraining the trade of New England was passed March 30, 1775, and later extended to the other colonies. In December, a bill cutting off all trade with America was enacted. As the Americans wanted to indulge in non-importation Lord North thought they should have their desire to the utmost. "... as the Americans," he is reported to have said, "had refused to trade with Great Britain, it was but just that they be not suffered to trade with any other nation."


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