Conceived in Liberty (249 page)

A potentially sweeping libertarian clause held “that every member of society hath a right to be protected in the enjoyment of life, liberty, and property,” but inconsistently drew from that the qualifying non sequitur that he “therefore is bound to contribute his proportion toward the expense of that protection.” The bill of rights also upheld, in this state with a long-time pacifist tradition, the right of conscientious objection to bearing arms upon payment of compensation. Some of the members of the convention toyed with the idea of a vague clause criticizing concentration
of property in the hands of a few, but this egalitarian clause was stricken from the final draft.
*

The highly liberal and democratic Pennsylvania constitution, promulgated on September 28, 1776, proved to be a beacon and inspiration to libertarians and a scourge to the conservatives throughout America. The absence of an upper house greatly angered John Adams and Benjamin Rush, who was pushed rightward by the constitution. Most resistant was the bulk of the wealthy and the well-born, reluctant to give up their old privileges. As one contemporary opponent of the constitution frankly put it: “Must gentlemen, who have ruled society for a century past, be trampled down to the level of common mechanics in an instant and be obliged to consult their humors...?”
**
Dr. William Shippen, a member of one of Philadelphia’s leading families, wryly wrote of the frenzied opposition:

I don’t wonder to see more of our friends offended and full of resentment upon the change who have been heretofore at the head of affairs, in short have in many instances behaved as though they thought they had a sort of fee simple in them and might dispose of all places of honor and profit as pleased them best, now to be ousted or at least brought down to a level with their fellow citizens.

The main point of attack seized upon by the conservatives—and by historians since—was the convention’s insistence upon prescribing a test oath of loyalty to the constitution and the new government by all Pennsylvania voters. The convention also raised revenue by levying fines on nonassociators, and decreed that justices of the peace could seize and hold indefinitely without trial or habeas corpus anyone speaking or writing against measures of the United States. While pointing to invasions of liberty by liberty’s proclaimed champions was certainly a neat debater’s trick, it was superficial and actually proved little. In the first place, the point was cynically demagogic, as the conservatives cared precious little for liberty. But more than this, it must be emphasized that invasions of liberty, particularly the liberty of Tories, were growing apace throughout the country. The Pennsylvania test oath was part of this nationwide crackdown, a crackdown here occurring in a state riddled with Tories and Tory sympathizers. While the oath was certainly deplorable and inconsistent with liberty, it is impermissible to equate mechanically the systematic invasions of liberty by a despotic regime with the sporadic excesses growing
out of a radical revolution’s desperate attempt to install a liberal regime against the opposition of its mortal enemies.

The wealthy and therefore the educated men of Pennsylvania and, hence, the bulk of the lawyers, opposed the constitution, which was defended by the radical theoreticians and supported by the mass of western farmers and by many urban artisans. The right, unwilling to accept defeat, rapidly formed an “Anti-Constitutionalist” party dedicated to framing a new constitution, while the radical defenders of the new regime became the “Constitutionalists.” The Anti-Constitutionalists organized a large meeting in Philadelphia in mid-October, which passed numerous resolutions against the constitution. These critics of libertarians tipped their philosophical hand by calling for the separation of powers as taught by the reactionary Baron de Montesquieu, and also for a more stringent religious test for voting. A large Philadelphia mass meeting a few days later “ratified” these resolves, over the opposition of Young, Matlack, and Cannon.

But the Philadelphia dissenters found their way totally blocked in the hinterland; the committees of Cumberland and Chester counties rejected the Philadelphia resolves, and no county meeting unqualifiedly endorsed them. The November elections, while electing Anti-Constitutionalists from the city and county of Philadelphia, placed the Constitutionalists in firm control of the assembly. But the Anti-Constitutionalists, led by John Dickinson, tried to wreck the assembly by staying away from the sessions and preventing a quorum. The radicals, however, simply and effectively held new elections for the posts of the absent members, and by March 1777, growing Constitutionalist strength gave them a quorum. The assembly under the Pennsylvania constitution was firmly in radical hands.

The conservatives, however, refused to relax their fight; in county after county, they would not serve in public office, and, as in Bedford County, conservative county clerks refused to surrender official records to their successors. Lawyers would not practice in the courts. Rightists rioted in Lancaster and other counties. Increasingly, rightist agitation was being led by James Wilson from Philadelphia. To counter the agitation, the Philadelphia radicals, led by the young artist Charles Willson Peale, formed a Whig Society and a committee of correspondence consisting of Peale, Young, Cannon, Rittenhouse, and Thomas Paine, who brought his powerful pen to the defense of the constitution. Amidst the war crisis, Congress presumed to step in and grant power to Pennsylvania’s executive officials, and the right mounted a crescendo of propaganda for a new constitutional convention. This plan was foiled by the crisis precipitated by General Howe’s advance on Philadelphia in July 1777, when all constitutional questions were postponed. The thwarting of the rightist plans by the British advance was in a sense poetic justice; for this campaign by the right
against the constitution played into the hands of the numerous Pennsylvania Tories and greatly weakened the state’s role in the Revolutionary War. To try and throw off the stigma of Toryism, the Anti-Constitutionalist party began to call themselves “Republicans.”

In contrast to the conservatives, the radicals in control of the assembly showed themselves paragons of magnanimity reaching the point of madcap generosity. Thus, their archenemies Robert Morris and James Wilson were retained as delegates to Congress, and they chose the now determined conservative Joseph Reed as first chief justice of the state, only to have him refuse brusquely as part of the withdrawal drive to scrap the constitution. After Reed declined, the post was offered to the Anti-Constitutionalist Thomas McKean, who was opportunistic enough to accept it. Finally, the radicals chose the moderate conservative, Thomas Wharton of the Indiana Company, to be the first president of the Pennsylvania council. When Wharton died in the spring of 1778, moreover, the radicals offered this important post to Reed. This offer finally pricked his opportunism and persuaded him to desert the bitter-end opponents of the constitution.

*
Professor Douglass, in his illuminating work on political controversies in the Revolutionary period, lays stress on this clause as evidence of a certain “New Deal” orientation in the assembly. But surely the important point is that this admittedly radical-dominated convention rejected this clause in the constitution. Cf. Elisha P. Douglass,
Rebels and Democrats
(Chapel Hill, N.C.: University of North Carolina Press, 1955), p. 266.

**
Ibid.,
p. 274.

If radicalism was to have its greatest triumph in Pennsylvania, this was not to be matched in Massachusetts, the birthplace of American radicalism. As we have seen, Massachusetts had taken a considerable turn rightward after the Revolutionary War began. For one thing, it could, for a while, fall back on its old charter rather than have to precipitate a bitter internal struggle to dislodge a Britain-oriented assembly, as happened in Pennsylvania. For another, its major radical leaders had either shifted sharply rightward (John Adams and Hancock) or else lost their sharpness of purpose (Sam Adams). But even so, the Adamses remained the bulwark and focus of the decentralist and left faction in the Continental Congress. Only the Berkshire Constitutionalists in far western Massachusetts had developed a domestic radicalism comparable to the dominant Pennsylvania left. In some respects, the Berkshire Constitutionalists surpassed them.

As Berkshire and Hampshire counties in western Massachusetts continued to live in a state of quasi anarchy, however, pressure began to erupt throughout the state in the fall of 1776 for a regularized constitution—especially after independence had been declared. The old existing charter was now an anachronistic reminder of British rule. Massachusetts radicalism began to emerge again as Concord, Boston, and numerous Worcester towns joined to urge a constitutional convention unmistakably separate from the regular legislature. Many towns also pioneered in another vital democratic innovation: the right of the people themselves to vote in a referendum on any constitution that the legislature or a special convention might adopt.

The Massachusetts General Court, however, backed by the majority of the towns, turned down a move to allow the people to elect a constitutional convention, and formed itself into a convention to write a constitution for the new state. In the considerable newspaper discussion in the summer of 1777 regarding the form that the new constitution should take, two different points of view were taken by “Clitus” and by “Faithful Friend.”
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On the left, “Clitus” urged a government that “is easy, simple, and cheap,” and thus elective in all branches, having a unicameral legislature, and based on universal manhood suffrage. He attacked the conservative tendency to reintroduce the British political system without Great Britain:

We debase ourselves in reintroducing the worst parts of British rule. The plain question is, are we fighting and lavishing our blood and treasure to establish the freest and best government on earth, or are we about to set up a formidable court interest?... The origin and essence of government is in the people. Therefore, let us keep the staff in our own hands.

“Faithful Friend,” in frank rebuttal, took up the traditional conservative theme of total distrust of the people and of the justice or the capacity of individuals to run their own lives. Instead, such power must be surrendered into the hands of a ruling oligarchy, who apparently suffer from no such incapacity, and who would presumably be checked sufficiently by periodic elections. Thus:

The stuff of power never was, nor never can be, in the nature of things, in the people’s hands. As a people we have no power in our hands we can safely exercise, but of choosing our guardians once a year.... We are not fighting for this or that form of government, but to be free from arbitrary power and the Iron Rod of Oppression on one hand, and from popular licentiousness and anarchy and confusion on the other.

The constitution reported by the General Court in the spring of 1778, after a sharp struggle, was shaped by such conservatives as Robert Treat Paine, Thomas Cushing, and John Adams. It was a highly conservative document, and was angrily rejected by the towns of Massachusetts, voting under universal manhood suffrage, by an overwhelming majority of five to one. Boston rejected the constitution by a similar majority. The towns of Lexington, Concord, and Beverly demanded a special constitutional convention, and Lexington, Westminster, Brookline, Lenox, and other towns made it clear that they would reject any constitution that did not have a bill of rights.

The town of Mendon, in Worcester County in the interior of the state, was typical in its libertarian objections to the constitution. It attacked the heavy property qualification for voting for governor or upper house, the veto power of the small upper house over the lower, the absolute power of the governor to command the militia, and the continuation of the Congregational establishment in the state. The nearby town of Sutton also attacked the absence of provisions against legislative corruption and the absence of any provision for abolishing slavery. Sutton also urged a popular referendum voting on all legislation and extending the vote to Negroes.

As might be expected, the most radically libertarian rebuffs to the proposed constitution of 1778 came from Berkshire and Hampshire counties. Thus, the town meeting of Greenwich (Hampshire) rejected the constitution because it replaced popular rule by oligarchy. It

entirely divests the good people of this state of many of the privileges which God and Nature has given them, and which has been so much contended for, and giv[es] away that Power to a few individuals which ought forever to remain with the people inviolate....

Specifically, Greenwich denounced the powers of the governor and the upper house, and called for a unicameral, annually elected assembly, the election of the civil and military officers by the people, and the annual election of all judges and officers of each town and county by the voters of the respective areas.

When the constitution of 1778 was thus overwhelmingly rejected, the conservatives were content to peg along on the old charter, but the Berkshire Constitutionalists persisted in refusing to recognize this regime, and in keeping the county courts closed until a constitution should be established. They even threatened to secede from Massachusetts. When the General Court tried to reopen the Berkshire courts itself in the spring of 1779, a determined crowd prevented the judges from holding court, successfully defying the state of Massachusetts.

Thus, by 1779, conservatives and radicals in Massachusetts were still locked in an inconclusive struggle. Neither had yet triumphed, and a state constitution had not yet been adopted.

The radical principles of the Pennsylvania constitution proved to be far more influential in Vermont—a state precariously and uniquely emerging in rebellion against conservative New York, one of the United States of America. At the westside town of Dorset at the end of July 1776, articles of association had been approved, declaring loyalty to the newly proclaimed United States, but indicating that the Grant lands were a separate
district unenthusiastic about being incorporated into New York. The articles were approved by the separate Grant towns east and west of the Green Mountains, and the New York State Convention resumed New York’s old harassment of the Grant settlers, insisting on rent payments to the New York land grantees. In response to this renewed threat, delegates from forty-four towns, eastside
and
westside, met together for the first time at Dorset on September 25. They boldly declared the Grants a separate district, abolished any New York laws still in effect, and organized a militia under this Grant land convention; The Grant lands were to be a separate state! A committee was appointed to ask Congress for admission to the Confederation. At the same time, a covenant was proposed to be signed by all adult males in Vermont, reciting the grievances against New York and pledging loyalty to this convention.