Winter of Decision: 1775-1776

Dr. Carson, well known to FREEMAN readers, is Chairman of the Social Science Department of Okaloosa-Walton Junior College in Nice­ville, Florida. This article is reprinted by permission from the Winter 1971 issue of My Country, pub­lished by My Country Society, Inc., of Litch­field, Connecticut.

A government of law rather than of men is hardly a recent idea. It was not even a new notion in the fateful winter of 1775-1776 that had been suddenly conceived by rebellious American colonists as a pretext for revolution. There were precedents and antecedents for this belief in government by law in the British tradition, in medi­eval thought and practice, and among Roman thinkers in classical antiquity.

But whether government should have its source in law or in men was no pretty abstract question to be pondered by contemplative philosophers for Americans dur­ing this winter. It was rooted in problems which were practical, pressing, and immediate. Govern­ment by men had resolved itself into the question of whether or not they should any longer be gov­erned by a single man, King George III. It was a question that burned itself into the center of the customs, habits, loyalties, rights, and prerogatives of Amer­icans.

How hard it was to decide what to do! Blood had already been spilled in anger: the battles of Lexington and Concord, and of Bunker Hill had already been fought. A continental army was encamped against a British army. The Second Continental Congress had been in session since May of 1775. It had already taken action which led almost irrevocably to rupture between England and America. George Washington had been appointed commander of the continental force. Congress had authorized an expedition against Quebec, approved of the construc­tion of a navy, and sent a com­mission abroad to seek friends among other countries. Yet the “shot heard round the world” had apparently ceased reverberating. Congress affirmed its loyalty to the King of England, and George Washington and his officers toast­ed the health of the King during that winter.

The Right to Tax

Step by step, over a period of ten years, leaders of the colonists had edged toward separation from England. When Parliament passed the Stamp Act, they had taken the position that it was unlawful be­cause Parliament did not have the authority to levy an internal tax. When Parliament retreated to ad­vance along a different line with the Townshend Duties, colonists took the position that Parliament could not levy external duties for the purpose of raising revenue. A chastened Parliament repealed most of these duties but then at­tempted to give the East India Company a monopoly of the sale of tea in the American colonies. Faced by this action, colonists denied the rightfulness of the cre­ation of a monopoly. By 1774-1775, such varied men as James Wilson, Thomas Jefferson, and John Adams questioned that Parlia­ment should have any legislative authority over America.

But from 1765 to 1775 it was always the powers of Parliament that were at issue. Protests were always made within the frame­work of preserving the connection with Britain and a professed loy­alty to the King.

Why, we may well ask, did the colonists have so much trouble focusing their ire upon the King? It is likely that had a poll been taken among those who had given thought to the matter that an overwhelming number of Amer­icans would have opted for gov­ernment by law. And what better symbol of arbitrary government could have been found than that of monarchy? Hardly a century had passed since the Stuart kings had claimed that all authority stemmed from them by divine right. Were not most of the gov­ernors “royal” governors? Were not the customs agents who be­set the colonists, agents of the “crown” in the final analysis? Were not the very soldiers en­camped against Americans, sol­diers of the king? Government by men could be traced finally to government by a man.

But the matter was not so sim­ple. For it was not only that a few hateful laws were promulgated in the name of the king. Cherished rights and liberties could be traced to the same source. A title search for the ownership of property in colonial times would lead one back­ward to the source of that title—the monarch who had granted the land to some company or propri­etor from whom a colonist had acquired it. It was no different with those liberties which the col­onists loved. Many of the charters upon which the colonies had been founded specifically stated that those who settled in America should retain all their rights and liberties as if they had remained in England. The right of govern­ing themselves traced back to the rights recognized by kings in times past.

If they should cast off their ties to the monarch, what then would be the status of their property and their liberties? Thus far they had based their opposition upon the unconstitutionality of the action taken by parliament, upon their position that their rights as Eng­lishmen had been violated. If they cast off this last tie with England, how then would they defend their life, liberty, and prop­erty?

The answer was lying ready to hand, of course. It was to be found in the arguments of the Roman Stoics, familiar to American think­ers. It had been given fairly re­cent statement by John Locke in his justification of the Glorious Revolution in England. The French philosophers had em­broidered upon it. Many Amer­icans had embraced—philosophi­cally—beliefs which would pro­vide a new foundation for liber­ties. This new foundation was that this universe is ruled by nat­ural law, that this is a law above and beyond the power of man to alter, and that it requires no hu­man sanction for it to prevail. The most that man can do is to recognize it and live in accord with it.

Common Sense

In that winter of decision, then, all that was needed was for the breath of life to pass into these new foundations. It required only that abstract ideas be given the force of human will and be made relevant to the American situa­tion. That man, more than any other, who performed this task for America was Thomas Paine. Paine had only lately come to America. He could be aptly described as a man with a nose for revolution—an itinerant revolutionist. He pub­lished a pamphlet called Common Sense in January, 1776. It sold by the tens of thousands, spreading like a wildfire through the colo­nies, confirming men in a new determination and galvanizing them to action. Paine went to the heart of the matter, minting deep philosophical beliefs into the coin of slogans and shibboleths.

He hacked into shreds the argu­ments against the final break. “But Britain is the parent country, say some. Then the more shame upon her conduct. Even brutes do not devour their young nor savages make war upon their families….” More, “Ye that tell us of harmony and reconciliation, can ye restore to us the time that is past? Can ye give to prostitu­tion its former innocence? Nei­ther can ye reconcile Britain and America. The last cord now is broken, the people of England are presenting addresses against us.”

As for the matter of a king, Paine went straight to the jugular vein. “But where, say some, is the king of America? I’ll tell you, friend, he reigns above, and does not make havoc of mankind like the royal brute of Britain.” Let the world know, he declares,—and this is the crux of his argument—”that in America the law is king. For as in absolute governments the king is law, so in free coun­tries the law ought to be king; and there ought to be no other.”

We do not know after what readings, following which discus­sions, after what lonely contem­plation, particular Americans made their decisions. We do know that when a resolution was intro­duced to Congress in 1776 for in­dependence that the Congress ap­proved. We know that a committee was appointed to draw up a dec­laration, and that the task of pre­paring a draft fell to Thomas Jefferson. And we know that Jef­ferson based his declaration upon the new foundations, and cast into unforgettable phrases the argu­ment for government by law.

Read again the introductory paragraphs of the Declaration of Independence:

“When in the Course of Human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the sep­arate and equal station to which the Laws of Nature and Nature’s God entitle them, a decent respect to the opinions of mankind re­quires that they should declare the causes which impel them to the separation.

“We hold these truths to be self-evident, that all men are cre­ated equal, that they are endowed by their Creator with certain un­alienable Rights, that among these are Life, Liberty, and the pursuit of Happiness….”

With the adoption of this dec­laration, the Continental Congress and with them—as it turned out—the American people, turned their back on the last relics of govern­ment by men and turned their faces toward the rule of govern­ment by law.

That was the decision which had issued from that winter of deliberation.