The Founding of the American Republic: 14. Freeing the Individual
SEPTEMBER 01, 1972 by CLARENCE B. CARSON
Dr. Carson recently has joined the faculty of Hillsdale College in Michigan as Chairman of the Department of History. He is a noted lecturer and author, his latest book entitled Throttling the Railroads.
Scribes are quite often merciless tyrants in dealing with characters out of the past, spearing them with an assortment of verbs and freezing them in predetermined categories with their adjectives, much as a butterfly collector does with his helpless insects. There is no surer way to shatter the integrity of an individual or to distort a historical epoch than by the indiscriminate use of categories. No man of wit is likely to believe that a category comprehends him, even when it is well chosen. But when categories drawn from other times and places are imposed upon men and events which are foreign to them, the result can only be to confuse the subject under discussion.
Some twentieth-century historians have done just this to American history of the late eighteenth century. They have called Americans of the time by names, some of which were unknown to them and others which they would have disavowed; they have categorized them as revolutionaries or reactionaries, democrats or aristocrats, nationalists or state’s righters, liberals or conservatives, and other such categories. They have tried to thrust the events into revolutionary and "social" revolutionary categories, categories drawn from other revolutions and other circumstances. It is a journalistic habit into which many historians have fallen to attribute an absoluteness to the views and thrusts of men which violates both what they intend and do. Debates, even great historical debates, can be quite misleading. Men often advance positions with more certainty than they feel, appear to be unalterable in their determination, yet may shortly yield to the other side with good humor when they have lost. Some historians appear to have no difficulty whatever in discovering men’s motives, but the fact is that we are not privy to their motives.
The subject to be treated below is the reforms and innovations made by Americans mostly in the decade after the declaring of independence. The above prelude was made necessary because the present writer both wishes to make known the fact that he is familiar with the cross currents of interpretation of these years by twentieth century historians and to disavow many of the categories that have been used. After the Americans broke from England they did make some changes; they did sometimes differ among themselves as to what the direction of change should be; but there is no need to question their motives or any solid basis for saying for certain what they were. Above all, there is no need to push this one into that category and that one into this, with the category being excessively large for the matter at issue and much too confining for the man over any period of time. More rubbish has been written about the class positions and interests of the men of these times than any other in American history, so far as I can make out. The present writer has neither the space nor inclination to spend energy upon trying to refute what has not been well established, in any case.
The Main Thrust of Changes
What is established is that there were some changes made during these years. The main thrust of these changes is the freeing of the individual: freeing him from foreign domination, from various government compulsions, from class prescriptions, and for greater control of his own affairs. And, in conjunction with these, there was an effort to erect safeguards around him that would protect him in the exercise of his rights. The thrust to do these things was made along several different paths, and each of these is worth some attention.
A primary aim of the Americans was independence. They wanted to be independent of England, of course; that was what the war was fought about. Many Americans had come to believe that they could only have the requisite control of their affairs by separating from the mother country. This was achieved, of course, by terms of the Treaty of Paris. But Americans longed also to be independent of European entanglements. Time after time, during the colonial period, Americans had been drawn into wars that originated in Europe but spread to the New World. Americans wanted to be free of the dynastic quarrels, the imperial ambitions, and the trade wars which rended Europe and shook much of the rest of the world. To many Americans, Europe was the symbol and embodiment of corruption, decadence, and foreclosed opportunity. To be independent of Europe was, in the final analysis, to be free to follow courses which had not yet, at any rate, proven to be so laden with disaster.
Independence did not mean, nor should it be taken to connote, the rejection of either the English or European heritage. Indeed, there was little irrational rejection of either heritage that comes to mind. Though Americans rejected European aristocracy they did not, for that reason, change names of places in this country derived from aristocrats.
Perhaps, the most extensive thrust of this period was to the freeing of the individual from government compulsion. Libertarian sentiment had been maturing for some considerable while in America; it was fostered both by legal trends and religious and other intellectual development. Once the break from England came, Americans used the occasion to cut away a body of restraints no longer in accord with their outlook.
Religious liberty was widely secured within a decade or so of the break from England. Much of it came by way of the disestablishment of churches. The establishment most readily dispensed with was that of the Church of England. While the Church of England was established throughout the South as well as in New York, it was not very popular; many of its clergy remained loyal to England, and adherents of it were outnumbered by dissenters in most states. Its disestablishment was made even easier because it was a national church; membership in it was tied to loyalty to the king of England. The Church of England was everywhere speedily disestablished. But these actions were not simply prompted by convenience, for there was increasing belief in religious liberty. Several states had no established churches: namely, New Jersey, Rhode Island, Pennsylvania, and Delaware. But they used the opportunity afforded by independence to remove or reduce restrictions. Some of the disabilities of Roman Catholics were cut away.
The established Congregational church was maintained for several decades longer in Massachusetts, Connecticut, and New Hampshire. There was, however, some liberalization in these states. The Massachusetts constitution of 1780 affirmed that every man had the right to worship in his own way, that no church should be subordinated to any other, and that tax moneys could be used to support ministers other than Congregationalists. However, church attendance was required still, and ministers were supported from taxes.¹ "New Hampshire followed in the steps of Massachusetts, but Connecticut held out much longer against what its citizens regarded as the forces of iniquity. They allowed dissenters to escape payment of taxes to the established church if they presented the clerk of the local church with a certificate of church attendance signed by an officer of the dissenter’s own church."2
The constitutions of New Jersey, Georgia, North and South Carolina, Delaware, and Pennsylvania "explicitly provided that no man should be obliged to pay any church rate or attend any religious service save according to his own free and unhampered will."3 But Virginia made the greatest effort to assure religious liberty. This might have been a reaction to the fact that Virginia had the longest establishment and one of the most rigorous. Thomas Jefferson, James Madison, and George Mason were leading advocates of religious liberty, but they did not succeed in getting their ideas into law until 1786. This was done by the Virginia Statute of Religious Freedom, which proclaimed religious liberty a natural right. An impressive preface states the case:
Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burdens, or by civil incapacitations, tend only to beget habits of hyprocrisy and meanness, and are a departure from the plan of the Holy author of our religion….
The legally effective portion of the statute reads this way:
That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.4
This was the beginning of religious liberty in America.
Freeing the Slaves
The movement for freeing the slaves reached a peak in the 1780′s which it would not soon attain again. Even before the break from England, the slave trade was acquiring a bad reputation in America, but such efforts as were made to restrict it were negated by the mother country. Fiske says, "The success of the American Revolution made it possible for the different states to take measures for the gradual abolition of slavery and the immediate abolition of the foreign slave-trade. "5 Nor was sentiment against slavery restricted to states in which there were few slaves. Some of the outstanding leaders from the South during this period, most of them slave-holders, spoke out against slavery. Henry Laurens, a leader in South Carolina, wrote in 1776: "You know my Dear Sir. I abhor slavery… — in former days there was no combating the prejudices of Men supported by Interest, the day I hope is approaching when from principles of gratitude as well [as] justice every Man will strive to be foremost in shewing his readiness to comply with the Golden Rule…."" Thomas Jefferson argued in his Notes on the State of Virginia that slavery had a bad influence on the manners and morals of the white people as well as its devastating effects on the Negroes. He longed for and hoped to see the day when all slaves would be emancipated. He warned his countrymen of the impending impact on them if this were not done "And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country," he said, "when I reflect that God is just; that his justice cannot sleep forever…."7
Some states began to act almost as soon as the opportunity arose. In 1776, Delaware prohibited the importation of slaves and removed all restraints on their manumission. Virginia stopped slave imports in 1778; Maryland adopted a similar measure in 1783. Both states now allowed manumission at the behest of the owner. In 1780, Pennsylvania not only prohibited further importation of slaves but also provided that after that date all children born of slaves should be free. Similar enactments were made in the early 1780′s in New Hampshire, Connecticut, and Rhode Island. In Massachusetts, the supreme court decided that on the basis of the constitution of 1780 slavery was abolished in that province. Even North Carolina moved to discourage the slave trade in 1786 by taxing heavily such slaves as were imported after that time. In order to protect free Negroes, Virginia made it a crime punishable by death for anyone found guilty of selling a freed Negro into slavery.8
How far sentiment against slavery had gone may well be best indicated by the Northwest Ordinance (1787), an act of all the states, as it were, in Congress assembled. The act provided "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes, whereof the party shall have been duly convicted…." This article was passed, according to one of its proponents, without opposition.9
The bills of rights drawn and adopted in the various states contained provisions intended to assure individual liberties. These bills of rights were usually drawn and adopted along with constitutions but were frequently separate documents. They were usually cast in the language of natural rights theory. For example, Article I of the Massachusetts Declaration of Rights states:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.¹º
Virginia was the first state to draw both a constitution and a bill of rights. Actually, Virginia’s Bill of Rights was adopted June 12, 1776, while the would-be state was still a colony. It was the work primarily of George Mason, was circulated among the states, and became a model for such instruments.
The Virginia Bill of Rights guaranteed trial by jury in both criminal and civil cases, prohibited excessive bail and fines, declared general warrants to be oppressive, and acknowledged freedom of the press. The protections of a person accused of a crime were spelled out:
That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man may be deprived of his liberty, except by the law of the land or the judgment of his peers.
The only specific protection of property, other than the provision for jury trial in civil cases, was the requirement that men "cannot be taxed or deprived of their property for publick uses, without their own consent, or that of their representatives so elected…."¹¹
The Massachusetts Declaration of Rights of 1780, the work mainly of John Adams, was considerably more thorough. In regard to property, it said "No part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his consent, or that of the representative body of the people…. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor."¹2 Other rights were alluded to than those mentioned in the Virginia Bill: freedom from unreasonable searches, the right to bear arms, the right of peaceful assembly, the prohibition of ex post facto laws, the prohibition of attainders by the legislature, as well as most of those covered in Virginia.
The Northwest Ordinance sums up, in Article II, what may well be considered a contemporary consensus of the protections of the rights of the people most needed:
The inhabitants of the said territory shall always be entitled to the benefits of the writs of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature, and judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offences, where the proof shall be evident, or the presumption great. All fines shall be moderate; and no cruel or unusual. punishment shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made to have force in the said territory, that shall in any manner whatever, interfere or affect private contracts, or engagements, bona fide, and without fraud previously formed.¹³
Some recent writers have claimed that the Founders distinguished between "human rights" and property rights in favor of "human rights." It should be clear from the above that no such distinction can be discerned, nor has the present writer ever seen a quotation from the original that could reasonably be construed to show that the Founders made any such distinction.
Property was, however, freed from various feudal restraints during this period and made more fully the possession of the individual holding title to it. The most general encumbrance on property ownership was the quitrent — a periodical payment due to king or proprietor on land, a payment that originated in the late Middle Ages as money payments displaced personal servitude. Such claims were speedily extinguished following the break from England, and land thereafter was held in "fee simple." Such royal prerogatives as the right of the monarch to white pines on private land were, of course, nullified. States abolished entail, also, a move which enhanced the authority of the owner to dispose of his lands.
With the Declaration of Independence, the whole edifice of mercantilism as imposed from England was swept away. One historian describes the impact of this as follows "As a result of the American Revolution, freedom of enterprise, that is, the equal opportunity of any individual to engage in any economic activity he chooses in order to amass wealth, and to hold onto his wealth or dispose of it as he pleases, became a living reality in America to a greater degree than before."14
Abolition of Classes
Another sort of innovation may be described as anti-class in its character. Fixed classes are supported and maintained by government where they exist. Americans of this period wanted to remove government support of classes and prevent the growth of special privileges by which classes are shaped. Some of the actions already described were, in part, anti-class measures. For example, the established Church of England was hierarchical and, in England particularly, a major support of class arrangements. Its disestablishment in America struck at the root of government support of class structures. Entailment was a means of perpetuating great estates, just as quitrents were devices for maintaining aristocracies. Other actions were taken that were even more pointedly aimed at removing government from its role as class perpetuator.
One of these was the abolition of primogeniture. Primogeniture was the rule that the estate of one who died without a will should go either whole or in larger part to the eldest son. States abolished this rule and adopted the practice of dividing the estate equally among the children when the father died intestate. The tendency of this was for great estates to be broken up from time to time.
Various sorts of provisions were made in state constitutions to prevent the growth of aristocratic privileges. For example, the Virginia Bill of Rights had this provision:
That no man or set or men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator or judge to be hereditary.15
The Massachusetts Declaration held:
No man, nor corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary, nor transmissible to children, or descendants, or relations by blood; the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural.16
The animus against titles of nobility found expression sometimes. So strong was the animus against hereditary positions that the Society of Cincinnati, a voluntary association of officers who had served in the War for Independence, found it expedient to abandon the rule that membership could be inherited to allay the indignation against them. Frequent elections and restrictions on the amount of time one could serve in office were efforts to prevent the emergence of a ruling class, at least in part.
The kind of equality sought by prohibitions against governmentally fostered classes was equality before the law. So far as any other equality was concerned, American opinion of the time accepted differences in wealth and social station as inevitable and desirable results of differences in ability and effort. Undoubtedly, there were those in that day who would have liked to have some portions of the wealth and estates of others — who coveted what was not theirs — as there are in any day, but they were either inarticulate or ashamed to profess their views. Some historians have made much ado about the confiscation and sale of Loyalist estates during the war. This is treated as if it were a redistributionist scheme, and there is an attempt to give factual support to this notion by pointing out that large estates were sometimes broken up before they were offered for sale. This did sometimes happen, but it does not follow that it was done with any motive of equalizing holdings. Small parcels attract more bidders than large ones; hence, the price attained for large estates was likely to be increased by dividing them up. Moreover, large estates were sometimes formed or added to by buying several parcels.¹7
Limitations on Government
There were some general changes in governments during this period, changes in degree from what they had been under British rule. The main tendency was to make the state governments more dependent upon the popular will than they had been during the colonial period. The new state constitutions required that all state officers either be chosen by the electorate or appointed by those who had.
The main impetus behind making governments depend more closely on the electorate was a profound fear of government. This distrust of government was most clearly shown in the distrust of governors and courts, those parts of the government that had not been popularly chosen during the colonial period. The colonists feared the legislatures, too, or so the limitations on them would indicate, but out of their colonial experience, they feared them less than the other branches. In point of fact, Americans relied rather heavily on a narrow and provincial colonial experience in making their first constitutions. Probably, Massachusetts and New York should be excepted from these strictures.
The office of governor — or whatever the executive might be called, for some states abandoned briefly that colonial title — was stripped of much of the power and most of the independence enjoyed by colonial chief executives. Colonial governors had usually possessed an absolute veto over legislation. The new executives were stripped of the veto power in all but two of the states — Massachusetts and New York —, and in these the power was somewhat weakened. In all the states but New York the legislatures or the constitutions governed the assembling and dispersal of the legislative branch. In eight of the states, the chief executive was elected by the legislature, and he was made, thereby, greatly dependent upon it. His tenure of office was usually quite brief. In nine states, it was only twelve months, and nowhere was it for a longer period than three years. To prevent the growth of personal power in the hands of the governor, most state constitutions limited the number of terms he could serve in a given period.18
Courts and Legislatures
The courts generally were made more dependent on legislatures than they had been formerly. The Pennsylvania constitution described the relationship this way "The judges of the supreme court of judicature shall have fixed salaries, be commissioned for seven years only, though capable of reappointment at the end of that term, but removable for misbehavior at any time by the general assembly…."¹9 Even so, the principle of separation of powers generally prevailed as between the courts and the legislature more fully than between governors and legislatures.
The legislatures were subject to frequent elections, a device for making them closely dependent upon the electorate. In ten of the states the lower house was subject to annual elections; in two states their terms were only for six months. The members of the upper house usually had somewhat longer terms, but one state did not even have an upper house.²º Even so, the powers of the legislatures were quite extensive. Thomas Jefferson complained that in Virginia:
All the powers of government, legislative, executive, and judiciary, result to the legislative body…. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.²¹
What had been generally done was this: Americans in establishing their state governments had sought to check them by the electorate rather more than by an internal balance of powers. The people could, however, use their influence to abet arbitrary government as well as to check it.
There was also some extension of the franchise during this period. In addition, several legislatures were reapportioned to give inhabitants in the backcountry a more nearly proportionate voice in government. One of the trends, in this connection, was the movement of state capitals inland from the coast to make them more accessible to the back country.
Most of these were changes of degree rather than of kind. To call them revolutionary, as some twentieth century historians have, is a distortion of what happened and a stretching of the meaning of revolution beyond reasonable confines. Insofar as they were changes from what had prevailed, they were culminations of trends long afoot. Americans had been tending toward religious liberty in practice long before they established it in fundamental law. They had been evading, so far as they could, quitrents, primogeniture, and entail. Their new governmental structures embodied much of what they had been contending with the British for. Bills of rights, bicameral legislatures, and weak executives, were built on the British model. The assault on special privilege did run contrary to recent British practice to some extent, but it was quite in accord with what Americans had been doing almost since they had reached the New World. If in their early enthusiasms in government building they did not attend to a broader experience than their colonial one, this did not make their acts revolutionary, only precipitate. They were clear enough that they wanted to protect the individual from government in the enjoyment of his rights; they did not at first realize how much more this took than felicitously phrased declarations. Weak governments do not make liberty and property secure; that is the office of powerful governments internally restrained. Many Americans were to learn this lesson, and that rather quickly. But just as their first experiments were not revolutionary in character, no more were their later alterations a counter-revolution.
Next: The Critical Period.
¹ See Merrill Jensen, The New Nation (New York Vintage Books, 1950), p. 132. Ibid., p. 133.
3 John Fiske, The Critical Period of American History (Boston Houghton Mifflin, 1916), p. 78.
4 Jack P. Greene, ed., Colonies to Nation (New York McGraw-Hill, 1967), pp. 390-91.
5 Fiske, op. cit., p. 71
6 Greene, op. cit., p. 397.
7 Ibid., p. 398.
8 See Fiske, op. cit., pp. 74-75.
9 See Robert A. Rutland, The Birth of the Bill of Rights (New York Collier, 1962), p. 109.
¹º Henry S. Commager, ed., Documents of American History, I (New York Appleton-Century-Crofts, 1962, 7th ed), 107.
¹1 Ibid., p. 104.
12 Ibid., p. 108.
¹3 Greene, op. cit., pp. 472-73.
14 Dumas Malone and Basil Rauch, Empire for Liberty, I (New York: Appleton-Century-Crofts, 1960), 196.
¹5 Commager, op. cit., p. 103.
16 Ibid., p. 108.
¹7 See Frederick B. Tolles, "A Reevaluation of the Revolution as a Social Movement," George A. Billias, ed., The American Revolution (New York Holt, Rinehart and Winston, 1970, 2nd ed.), pp. 66-67.
¹8 See Richard Hofstadter, et. al., The United States (Englewood Cliffs, N. J.: Prentice Hall, 1967, 2nd ed.), p. 160.
19 Greene, op. cit., p. 343.
2º Hofstadter, op. cit., pp. 159-60.
21 Quoted in Nelson M. Blake, A History of American Life and Thought (New York McGraw-Hill, 1963), p. 100.