The Lockean Evolutionary State of Nature in the First Continental Congress: A Response to Barry Alan Shain

In John Adams' Notes on the Debates in the Continental Congress, September 6, 1774, Patrick Henry Declares: "We are in a State of Nature, Sir."

I have said that the American Revolution began when some of the delegates to the First and Second Continental Congresses saw that they were in a state of nature, and that they could exercise the natural right of the people to establish a new government to secure their rights.  This Lockean liberal understanding of what they were doing was then eloquently stated in the Declaration of Independence, particularly in its famous second sentence ("We hold these truths . . .").

And yet, many scholarly interpreters of the American Revolution claim that this account of the debates that led to the Declaration of Independence is deeply mistaken.  For example, Barry Alan Shain has argued this in his edited book--The Declaration of Independence in Historical Context (Liberty Fund, 2014)--which is a massive collection of material related to the first three national congresses: the Stamp Act Congress (October 7-25, 1765), the First Continental Congress (September 5-October 26, 1774), and the Second Continental Congress (May 10, 1775, to March 1, 1781).

In his Introduction to this book, Shain explains that in the scholarly study of the thinking that led to the Declaration of Independence, there are at least seven different schools of interpretation.  Of these seven, Shain suggests that what he calls "the Imperial school" interpretation is strongly confirmed by the documents he has collected in his book.  According to the Imperial school, the debates that led to the American Revolution were part of a unique historical situation--the British Imperial Crisis (from the Stamp Act Crisis of 1763 to the end of the American Revolution in 1783)--which was a seemingly irresolvable debate over how to protect the British political rights of the American colonists, within the British Empire, while maintaining Parliament's supremacy in Great Britain.  This was not, therefore, Shain argues, a debate about universal natural rights of all human beings (as assumed by Lockean liberals), but rather it was a debate about the civil rights of British citizens under the British Constitution.

If this is true, then the natural rights theorizing of the Declaration of Independence (particularly in the second sentence) is not an accurate expression of colonial political thinking over the preceding twelve years of debate over the rights of the colonists in the British Empire.  Shain agrees with the conclusion of Charles McIlwain (one of the first Imperial school scholars) in his book The American Revolution:

"The Declaration of Independence is a totally different kind of document from any of its predecessors.  For the first time the grievances it voices are grievances against the King, and not against Parliament.  It is addressed to the world, not to Great Britain, and naturally the ground of such a protest will be one understood by a world that knows little of the British constitution and cares less: it will be based on the law of nature instead of the constitution of the British Empire."

Shain asserts: "The readings that follow, I believe, will offer copious and compelling support for McIlwain's conclusion" (8).

Moreover, he believes that the readings he has chosen for his book should have a higher level of interpretive authority than other collections of source materials on the American Revolution and the Declaration of Independence.  Presumably, the documents for the three continental congresses, with delegates selected to represent all of the colonies, express a broad range of views of continental constituencies, rather than particular individuals, cities, or colonies. 

I am not persuaded, however, that those documents for the continental congresses really do support the conclusion of McIlwain and Shain that prior to the summer of 1776, the majority of the congressional delegates appealed to the legal rights of the colonists under the British Constitution, while refusing to appeal to any supposed natural rights or law of nature.

Consider, for example, the debate in the First Continental Congress over how to understand the rights of the colonies.  There were 56 delegates from 12 colonies.  On the second day that the Congress met, September 6, 1774, after Patrick Henry's declaration that "we are in a state of nature," the Congress resolved to appoint delegates to a committee to examine the colonies' rights and to compile a list of grievances.

In his Diary, John Adams described the debate in this committee: 

"The two Points which laboured the most, were 1. Whether We should recur to the Law of Nature, as well as to the British Constitution and our American Charters and Grants.  Mr. Galloway and Mr. Duane were for excluding the Law of Nature.  I was very strenuous for retaining and insisting on it, as a Resource to which We might be driven, by Parliament much sooner than We were aware.  The other great question was what Authority We should conceed 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" (Diary and Autobiography [Harvard University Press, 1961], 3:309).

According to Shain, Adams here joined the "radicals" or "republicans" in the Congress in appealing to the law of nature, while Galloway and Duane were on the side of the "moderates" or "loyalists" in appealing only to the British Constitution.  But while Shain says the loyalists were the majority, I don't see the evidence for that.

In his book, Shain includes Adams' notes of the debate for September 8, 1774, which Shain describes as "one of the most theoretically rich documents in this collection" (Shain, 220-25).  In this debate, only three individuals reject the appeal to the law of nature--John Rutledge of South Carolina, James Duane of New York, and Joseph Galloway of Pennsylvania--a small minority in the Congress, which had 56 delegates.

Richard Henry Lee begins by claiming: "The Rights are built on a fourfold foundation--on Nature, on the british Constitution, on Charters, and on immemorial Usage."

John Jay agrees: "It is necessary to recur to the Law of Nature, and the british Constitution to ascertain our Rights."  He also says that the colonists had a right to emigrate from England, and "Emigrants have a Right, to erect what Government they please."

But Rutledge disagrees:  "An Emigrant would not have a Right, to erect what Government they please."

Lee responds: "Cant see why We should not lay our Rights upon the broadest Bottom, the Ground of Nature.  Our Ancestors found here no Government."

But Rutledge insists: "Our Claims I think are well founded on the british Constitution, and not on the Law of Nature."

Duane agrees:  "Upon the whole for grounding our Rights on the Laws and Constitution of the Country from whence We sprung, and Charters, without recurring to the Law of Nature--because this will be a feeble Support."

Lee appeals to the state of nature:  "Life and Liberty, which is necessary for the Security of Life, cannot be given up when We enter into Society."

Rutledge disagrees:  "The first Emigrants could not be considered as in a State of Nature--they had no Right to elect a new King."

Galloway joins with Rutledge and Duane in rejecting the state of nature:  "I have looked for our Rights in the Laws of Nature--but could not find them in a State of Nature, but always in a State of political Society.  I have looked for them in the Constitution of the English Government, and there found them.  We may draw them from this Source securely."

Notice that while the radicals appeal both to the laws of nature and to the British Constitution, the three loyalists here argue that any appeal to the British Constitution must exclude any appeal to the law of nature.  

As far as I can tell, Galloway, Rutledge, and Duane are the only delegates who here reject any consideration of the law of nature.  But all three contradict themselves within a few weeks by voting for resolutions that invoke the law of nature.

On September 17, the Congress was presented with the "Suffolk Resolves," resolutions approved by delegates from several towns and districts in Suffolk county of Massachusetts bay, the county that included Boston (Shain, 146-51).  They were written by Joseph Warren, with help from Samuel Adams, who were leading radicals in Massachusetts.  The Resolves defended the colonial rights of Massachusetts as "derived from nature, the constitution of Britain, and the privileges warranted to us in the charter of the province," rights to which they are "justly entitled by the laws of nature, the British constitution, and the charter of the province."  On September 18, the Continental Congress approved resolutions endorsing the Suffolk Resolves and asking that they be published in the newspapers.  By approving these resolutions, Galloway, Rutledge, and Duane appeared to implicitly endorse the appeal to the law of nature.

Then, on October 20, the Congress approved a plan for establishing the Continental Association to enforce a colonial boycott of British goods (Shain, 181-86).  Part of that plan was that a committee be chosen by popular election in every county, city, and town, which would identify those people who were violating the boycott so that they could be punished by public shaming and ostracism.  John Adams called this Continental Association "the commencement of the American Union," because this was the first time that the American people had established something like a national governmental authority.  Since the Continental Congress had no legal authority under the British Constitution to do this, the Congress was implicitly exercising the natural right of the people in a state of nature to establish new governmental institutions to secure the public good.  By voting for this, Galloway, Rutledge, and Duane were implicitly appealing to the law of nature in a state of nature.

Shortly before the Congress adjourned on October 26, the Congress approved a "Bill of Rights and List of Grievances," with language that anticipated in many ways the Declaration of Independence.  In this Bill of Rights, they declared "THAT the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters, have the following RIGHTS."  The first in the list of rights was "THAT they are entitled to life, liberty, and property: and they have never ceded to any sovereign power whatever, a right to dispose of either without their consent" (Shain, 212).  In voting for this, Galloway, Rutledge, and Duane recognized those "immutable laws of nature."

Of these three people, Galloway was the only one who ultimately decided to take the loyalist position against the Declaration of Independence and its appeal to "the Laws of Nature and of Nature's God."  In the First Continental Congress, he had proposed a "Plan of Union" that would have unified the colonies within the British Empire (Shain, 155-174).  This plan would have established an American legislature for regulating the general affairs of America, while each colonial legislature would continue to regulate its internal affairs.  General regulations could be proposed by either the new American legislature or by the British Parliament, but the enactment of these regulations would require the assent of both.  After debating Galloway's plan, the Congress voted against accepting it; and the record of the plan was expunged from the congressional Journal.

In his speech arguing for his Plan, Galloway warned that if the Plan was rejected, the colonies would remain disunited, without any national government.  "That while they deny the authority of Parliament, they are, in respect to each other, in a perfect state of nature, destitute of any supreme direction or decision whatever, and incompetent to the grant of national aids, or any other general measure whatever, even to the settlement of differences among themselves" (Shain, 168).

But when the Second Continental Congress convened on May 10, 1775, it exercised the natural right of the people in a state of nature to establish a new government, because this Continental Congress acted as a provisional national government that managed the revolutionary war and approved the Declaration of Independence in 1776 and the Articles of Confederation in 1777, which were ratified in 1781.  

In 1775, Galloway quit the Pennsylvania Assembly and refused to serve in the new Continental Congress.  He opposed the adoption of the Declaration of Independence.  After the Declaration was signed, he fled to New York to join the British and become a top advisor to William Howe, the commander-in-chief of British forces in North America.  After the British captured Philadelphia in September, 1777, Howe appointed him as one of the administrators over the city.  When the British left Philadelphia in June of 1778, Galloway escaped to England.  For the rest of the war, he was a leader of the loyalist colonists in England.

In contrast to Galloway, Rutledge and Duane both served in the Second Continental Congress, supported the Declaration of Independence, and served in the new national government.  Duane eventually became a federal judge appointed by George Washington.  Rutledge became a Justice (and later Chief Justice) of the United States Supreme Court.

So it seems that Galloway was the member of the Continental Congress who persisted in his loyalist denial that the American colonists had any natural right to declare their independence and "to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

Many of the loyalists like Galloway joined the British in fighting the American revolutionaries.  And as I have argued, the debate between the loyalists and the revolutionaries was ultimately decided by what Locke called an "Appeal to Heaven"--an appeal to the God of Battles.  The Second Continental Congress recognized this in their "Second Proclamation for a Day of Humiliation, Fasting, and Prayer," of March 16, 1776, where they appealed to "the God of Armies, to animate our officers and soldiers with invincible fortitude, to guard and protect them in the day of battle, and to crown the continental arms, by sea and land, with victory and success" (Shain, 407).