Essay 4 - Guest Essayist: Joerg Knipprath

There are two recognized types of war, war between nations (“international war”) and war within a nation (“civil war”). In a civil war, some portion of the inhabitants forcibly seeks political change. The goal often is to replace the existing constitutional government with their own by taking over the entire structure or by separating themselves and seeking independence from their current compatriots.

A civil war may be an insurrection or a rebellion, the stages being distinguished by a rebellion’s higher degree of organization of military forces, creation of a formal political apparatus, greater popular participation, and more sophistication and openness of military operations. By those measures, the American effort began as an insurrection during the localized, brief, and poorly organized eruptions in the 1760s and early 1770s. Various petitions, speeches, and resolves opposing the Revenue Act, the Stamp Act, the Quartering Act, and others, were reactive, not strategic. Even circular letters among colonial governments for unified action, such as that by the Massachusetts assembly in February, 1768, against the Townshend Acts, or hesitant steps toward union, such as the Stamp Act Congress of 1765, were of that nature. Much rhetoric was consumed along with impressive quantities of Madeira wine, but tactical successes were soon superseded by the next controversy.

In similar vein, local bands of the Sons of Liberty, the middle-class groups of rabble-rousers that emerged in 1765, fortified in their numbers by wharf-rats and other layabouts, might destroy property, intimidate and assault royal officials, and harass locals seen as insufficiently committed to opposing an often-contrived outrage du jour. They might incite and participate in violent encounters with the British authorities. But, while they engaged in melodramatic and, to some Americans, satisfying political theater, they were no rebel force. Moreover, the political goals were limited, focused on repeal or, at least, non-enforceability of this or that act of Parliament.

Yet, those efforts, despite their limited immediate successes, triggered discussions of constitutional theory and provided organizational experience. In that manner, they laid the groundwork that, eventually, made independence possible, even if no one could know that and few desired it. Gradually, the vague line between insurrection and rebellion was crossed. The consequences of the skirmishes at Lexington and Concord have made it clear, in retrospect, that, by the spring of 1775, a rebellion was under way.

The Second Continental Congress met on May 10, 1775, and, in contrast to its predecessor, did not adjourn after concluding a limited agenda. Rather, it began to act as a government of a self-regarding political entity, including control over an organized armed force and a navy. Congress sent diplomatic agents abroad, took control over relations with the Indian tribes, and sent a military force under Benedict Arnold north against the British to “assist” Canada to join the American coalition. It appointed George Washington as commander-in-chief of the “Army of the United Colonies.” That army, and other forces, achieved several tactical military successes against the British during 1775 and early 1776, although the Canadian expedition narrowly failed.

Still, something was lacking. The scope of the effort was not matched by an equally ambitious goal. The end was not in focus. Certainly, repeal of the Coercive Acts, which had been enacted in the spring of 1774, urgently needed to be achieved. Those acts had closed the port of Boston, brought the government of Massachusetts under more direct royal control by eliminating elected legislative offices, and authorized the peacetime quartering of troops in private homes. These laws appeared reasonable from the British perspective. Thus, the Quartering Act intended to alleviate the dire conditions of British soldiers who were forced to sleep on Boston Common. The Government and Administration of Justice Act was to ensure, in part, fair trials for British officials and soldiers accused of murder as had happened in 1770 in the “Boston Massacre.” At the same time, though these acts were limited to Massachusetts, many colonists feared that a similar program awaited them. These laws were so despised that they were collectively known to Americans also as the “Intolerable Acts.”

Was there to be more? In unity lay strength, and the Second Continental Congress was tasked with working out an answer. But Congress was more follower than leader, as delegates had to wait for instructions from their colonial assemblies. That meant the process was driven by the sentiments of the people in the colonies, and the Tory residents of New York thought differently than the Whigs of beleaguered Massachusetts. Within each colony, sentiments, quite naturally, also varied. The more radical the potential end, the less likely people were to support it. Even as late as that spring of 1775, there existed no clear national identity as “American.” People still considered themselves part of the British Empire. The rights that they claimed were denied them by the government in London were the “ancient rights of Englishmen.” The official American flag, used by the armed forces until June, 1777, was composed of the familiar, to us, thirteen red and white stripes in its field, but its canton was the British Union Jack. Without irony, Congress’s military operations were made in the name of the king. General Washington was still toasting the king each night at the officer’s mess in Cambridge while besieging the British forces in Boston.

The gentlemen who met in Philadelphia came from the colonial elite, as would be expected. But they were also distinguished in sagacity and learning, more so than one has come to expect from today’s Congress drawn from a much larger population. Almost none favored independence. Those few that did, the Adams cousins from Massachusetts, Sam and John; the Lees of Virginia, Francis Lightfoot and Richard Henry; Benjamin Franklin of Pennsylvania; and Christopher Gadsden of South Carolina, the “Sam Adams of the South” as he came to be known, kept their views under wraps. Instead, the goal initially appeared to be some sort of conciliation within a new constitutional relationship of yet-to-be-determined form. Many delegates had also served in the First Continental Congress dedicated to sending remonstrances and petitions. On the other hand, Georgia had not sent delegates to the First, so its delegation consisted entirely of four novices. Peyton Randolph of Virginia was chosen president, as he had been of the First Continental Congress. He was soon replaced by John Hancock when Randolph had to return to Virginia because of his duties as Speaker of the House of Burgesses.

One person missing from the assemblage was Joseph Galloway of Pennsylvania. He had attended the First Continental Congress, where he had drafted a plan of union between the colonies and Britain. Parliament would control foreign affairs and external trade. As to internal colonial affairs, Parliament and a new American parliament would each effectively have veto power over the acts of the other. His plan would have recognized a degree of colonial sovereignty, but within the British system. It was rejected by one vote, six colonies to five, because a more confrontational proposal, the Suffolk Resolves, had recently been adopted by the towns around Boston which outflanked his proposal politically. Congress instead endorsed the Resolves, and voted to expunge Galloway’s plan from the record. Still, his proposal was a prototype for the future federal structure between the states and the general government under the Articles of Confederation. Repulsed by what he saw as the increasing radicalism of the various assemblies, he maintained his allegiance to the king. By 1778, he was living in London and advising the British government.

Congress sought to thread the needle between protecting the Americans from intrusive British laws and engaging in sedition and treason. In constitutional terms, it meant maintaining a balance between the current state of submission to a Parliament and a ministry in which they saw themselves as unrepresented, and the de facto revolution developing on the ground. The first effort, by John Dickinson of Pennsylvania and Thomas Jefferson of Virginia, was the “Declaration on the Causes of Taking Up Arms.” It declared, “We mean not to dissolve that union which has so long and so happily subsisted between us…. We have not raised armies with ambitious designs of separation from Great Britain, and establishing independent States.” Then why the effort? “[W]e are reduced to the alternative of choosing an unconditional submission to the tyranny of irritated ministers, or resistance by force. The latter is our choice.” Note the problem: not the king, not even Parliament, but “irritated ministers.” The path to resolution of the conflict, it seemed, was to appeal to the king himself, who, it was surmised, must have been kept in the dark about the dire state of affairs of his loyal colonial subjects by his ministers’ perfidy.

On July 8, 1775, Congress adopted the “Olive Branch Petition,” also drafted by John Dickinson. That gentleman, a well-respected constitutional lawyer, member of the First Continental Congress, and eventual principal drafter of the Articles of Confederation in 1777, wanted to leave no diplomatic stone unturned to avoid a breach with Great Britain. The historian Samuel Eliot Morison relates remarks attributed to John Adams about the supposed reasons for Dickinson’s caution. According to Adams, “His (Dickinson’s) mother said to him, ‘Johnny you will be hanged, your estate will be forfeited and confiscated, you will leave your excellent wife a widow, and your charming children orphans, beggars, and infamous.’ From my Soul, I pitied Mr. Dickinson…. I was very happy that my Mother and my Wife…and all her near relations, as well as mine, had been uniformly of my Mind, so that I always enjoyed perfect Peace at home.” A new topic of study thus presents itself to historians of the era: the effect of a statesman’s domestic affairs on his view of national affairs.

The Petition appealed to the king to help stop the war, repeal the Coercive Acts, restore the prior “harmony between [Great Britain] and these colonies,” and establish “a concord…between them upon so firm a basis as to perpetuate its blessing ….” Almost all who signed the later Declaration of Independence signed the Petition, largely to placate Dickinson and, for some, to justify more vigorous future measures. As feared by many, and hoped by some, on arrival in London, the American agents were told that the king would not receive a petition from rebels.

British politicians were as unsure and divided about moving forward as their American counterparts in Congress. But George III could rest assured of the support of his people, judging by the 60,000 that lined the route of his carriage from St. James Palace to the Palace of Westminster on the occasion of his speech to both houses for the opening of Parliament on October 26, 1775. The twenty-minute speech, delivered in a strong voice, provides a sharp counterpoint to the future American Declaration of Independence. Outraged by the attempted invasion of Canada, a peaceful and loyal colony, the king already on August 23 had declared that an open rebellion existed.

He now affirmed and elaborated on that proclamation. Leaders in America were traitors who in a “desperate conspiracy” had inflamed people through “gross misrepresentation.” They were feigning loyalty to the Crown while preparing for rebellion. Now came the bill of particulars against the Americans: “They have raised troops, and are collecting a naval force. They have seized the public revenue, and assumed to themselves legislative, executive, and judicial powers, which they already exercise in the most arbitrary manner…. And although many of these unhappy people may still retain their loyalty…the torrent of violence [by the Americans] has been strong enough to compel their acquiescence till a sufficient force shall appear to support them.”

Despite these provocations, he and the Parliament had acted with moderation, he assured his audience, and he was “anxious to prevent, if it had been possible, the effusion of the blood of my subjects, and the calamities which are inseparable from a state of war.” Nevertheless, he was determined to defend the colonies which the British nation had “encouraged with many commercial advantages, and protected and defended at much expense of blood and treasure.” He bemoaned in personal sorrow the baleful effects of the rebellion on his faithful subjects, but promised to “receive the misled with tenderness and mercy,” once they had come to their senses. Showing that his political sense was more acute than that of many Americans, as well as many members of Parliament, the king charged that the true intent of the rebels was to create an “independent empire.”

Two months later, Parliament followed the king’s declaration with an act to prohibit all commerce with the colonies and to make all colonial vessels subject to seizure as lawful prizes, with their crews subject to impressment into the Royal Navy.

The king’s speech was less well-received in the colonies, and it gave the radicals an opportunity to press their case that the king himself was at the center of the actions against the Americans. It was critical to the radicals’ efforts towards independence that the natural affinity for the king that almost all Americans shared with their countrymen in the motherland be sundered. Some snippets about the king’s character from the historian David McCullough illustrate why George III was popular. After ascending the throne in 1760 at age 22, “he remained a man of simple tastes and few pretensions. He liked plain food and drank but little, and wine only. Defying fashion, he refused to wear a wig…. And in notable contrast to much of fashionable society and the Court, … the king remained steadfastly faithful to his very plain Queen, with whom [he ultimately would produce fifteen children].”  Recent depictions of him as unattractive, dull, and insane, are far off the mark. He was tall, well above-average in looks at the time, and good-natured. By the 1770s, he was sufficiently skilled in the political arts to wield his patronage power to the advantage of himself and his political allies. One must not forget that, but a decade earlier, colonial governments had voted to erect statues in his honor. It was the very affability of George III and his appeal as a sort of “people’s king” that made it imperative for Jefferson to portray him in the Declaration of Independence as the ruthless and calculating tyrant he was not.

Between November, 1775, and January, 1776, New York, New Jersey, Pennsylvania, and Maryland still explicitly instructed their delegates to vote against independence. But events soon overtook the fitfulness of the state assemblies and Congress. Parliament’s actions, once they became known, left no room for conciliation. The colonies effectively had been declared into outlawry and, in Lockean terms, reverted to a “state of nature” in relation to the British government. The struggles in the colonial assemblies between moderates who had pressed for negotiation and radicals who pushed for independence now tilted clearly in favor of the latter.

Yet before news of Parliament’s actions reached the colonies, another event proved to be even more of a catalyst for the shift from conciliation to independence. In January, 1776, Thomas Paine, an English corset maker brought to Pennsylvania by Benjamin Franklin, published, anonymously, a pamphlet titled “Common Sense.” Paine ridiculed monarchy and denounced George III as a particularly despicable example. The work’s unadorned but stirring prose, short length, and simplistically propagandistic approach to political systems made it a best seller that delivered an electric jolt to the public debate. The extent to which it influenced the deliberations of Congress is unclear, however.

The irresolution of the Congress, it must be noted, was mirrored by the fumblings of Parliament. The Americans had many friends for their cause in London, even including various ministries, some of which nevertheless were reviled in the colonies. This had been the case beginning the prior decade, when American objections to a particular act of Parliament resulted in repeal of the act, only to be followed by another that the Americans found unacceptable, whereupon the dance continued. Still, the overall trend had been to tighten the reins on the colonies. But that did not deter Edmund Burke, a solid—but at times exasperated—supporter of the Americans, to introduce a proposal for reconciliation in Parliament in November, 1775. Unfortunately, it was voted down. Others, including Adam Smith and Lord Barrington, the secretary at war, urged all British troops to be removed and the Americans to be allowed to determine whether, and under what terms, they wished to remain in union with Britain.

Other proposals for a revised union were debated in Parliament even after the Americans declared independence. These proposals resembled the dominion structure that the British, having learned their lesson too late, provided for many of their colonies and dependencies in subsequent generations. The last of these, the Conciliatory Bill, which actually was passed on February 17, 1778, gave the Americans more than they had demanded in 1775. Too late. The American alliance with France made peace impossible. Had those proposals, allowing significant control by the colonists over local affairs, been adopted in a timely manner, the independence drive well may have stalled even in 1776. Even Adams, Jefferson, and other radicals of those earlier years had urged a dominion structure, whereby the Americans would have controlled their own affairs but would have remained connected to Britain through the person of the king. The quote attributed to the former Israeli Foreign Minister Abba Eban about the Arabs of our time might as well have applied to the British of the 1770s, “[They] never miss[ed] an opportunity to miss an opportunity.”

Reflecting the shifting attitudes in the assemblies, and responding to the seemingly inexorable move to independence by the states, the Second Continental Congress also bent to the inevitable. The Virginia House of Burgesses on May, 15, 1776, appointed a committee to draft a constitution for an independent Commonwealth, and directed its delegates in Congress to vote for independence. Other states followed suit. Finally, Richard Henry Lee moved in Congress, “That these United Colonies are, and of right ought to be, Independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.” The die was cast.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

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2 replies
  1. Ron Meier
    Ron Meier says:

    I see an eerie parallel here. As the British Parliament pressed with increasingly harsh violations of the rights of the Colonists, an increasing number of heretofore loyalists in the Colonies came to the side of the rebels. Today, most Americans on the right or left want to peacefully settle our differences through the legal Constitutional processes in place. However, if the stats I read are reasonably accurate, an increasing number of Americans on the left are preferring socialism and the constraints on freedom that socialism creates. Unalienable rights as well as some of the Bill of Rights could be replaced by positive rights granted by government. At some point, if the Democrats in Congress and the President accede to their demands for more “Intolerable and Coercive Acts,” even centrist and liberal Democrats may join Republicans and decide that conciliation is impossible and take what has been peaceful protests to an insurrection level. It could be a very dangerous time. Surely, we are at a time when it is really important to “understand history so we don’t repeat history.”


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