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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. 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. 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.
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, 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"? 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...."
 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." 
This resolution appears to be essentially a compromise; 
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. 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."  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. 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
Of great consequence was the "Association", "a non-importation,
non-consumption, and non-exportation agreement,"  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
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; 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. 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.
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  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
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.
 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.
 "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.
 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.
 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.
 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".
 John Adams, Works (C. F. Adams, ed.), II, p.
 Journals, I, pp. 68-69.
 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.
 "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.
 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
 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.
 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.
 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.
 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
"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.
 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
 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.
 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."