Conceived in Liberty (247 page)

The most bitter of the three controversies around the Dickinson draft was over its proposal to nationalize all the western lands: to vest all the lands beyond the boundaries of the thirteen states in the ownership of Congress. The alternative was to allow them to remain in the hands of Virginia, which had vague charter claims to all land westward to the Mississippi.

The radicals opposed the Dickinson draft in reaction to the imposed jurisdiction of a remote central government in which the public had no direct participation. More important, they realized that the drive for nationalization of the western lands came from long-associated groups of highly influential land speculators, whose grandiose claims to western territory had already been spurned by Virginia, and who counted on the national government to grant them their demands. If Congress ultimately would not do so, they had nothing to lose. Many historians have treated this conflict as being between the “landless” states favoring nationalization, against the landed in favor of keeping their claims; yet two of the six “landless”—New Hampshire and Rhode Island—showed no interest whatever in nationalization. It was from Maryland, Pennsylvania, Delaware, and New Jersey, home of the key groups of speculators in western land, from which all the pressure came. Before the Revolution, the land speculators had looked to the British government to establish their
monopolistic claims; now they turned equally naturally to the Continental Congress.

It is not at all coincidental that John Dickinson hailed from Pennsylvania; that Franklin, whose plan had envisioned Congressional control of the western lands, was both a Pennsylvanian and a land speculator; and that the chief defenders of the land nationalization clause in Congress were Samuel Chase of Maryland, a member of the Illinois-Wabash Co. of western-land speculators, and James Wilson of Philadelphia, the president of the same company.

The speculators were driven to the Dickinson draft by Virginia’s actions during late June 1776. The Virginia Convention had formally asserted her jurisdiction to all her grandoise charter claims to western land; it had condemned all unauthorized purchases of land from the Indians; and finally, upon petition of the settlers, it guaranteed to the actual settlers the right to preemption of their land. This resolution of May 14 was the first legislation in American history to assert the rights of the settler. It was this Virginia claim, and the guarantee to the settlers, that led the land speculators to try for nationalization of the western lands.

The Dickinson draft, completed less than a month after Virginia’s action, granted to the land speculators more or less all of their goals of nationalization. Congress was given the sole power to decide state boundaries and to purchase lands beyond these boundaries from the Indians, thus implying the existence of American lands outside the bounds of any state. It was also specifically given sole and exclusive power to limit the bounds of state claims to western lands.

The Virginians reacted to the Dickinson draft with understandable bitterness; after all, one of the grievances against Great Britain had been its meddling and authority over the western lands. Richard Henry Lee and Thomas Jefferson led the attack, while Samuel Chase and Thomas Johnson of Maryland and James Wilson led the nationalizers. Wilson even tried to specify and strengthen the Congressional powers over the lands, but each of the proposals was roundly defeated. Finally, by October 1777, the landed states had triumphed. Lee successfully moved to insert in the Articles a clause to the effect “that no state shall be deprived of territory for the benefit of the United States.”

For his part, Thomas Jefferson was quite clear that his resistance to land nationalization was founded not on the territorial claims of Virginia but on his deep-seated belief in justice to the settlers. As his biographer puts it:

In his [Jefferson’s] mind this was not primarily a question of rivalry between one state and another.... His major concern was not for the land but for the people who settled on it; and at this time he believed that the interests
of the pioneers could be better safeguarded by states than by Congress, which seemed more susceptible to the pressure of speculative land companies. He was deeply sympathetic with squatters, but had little patience with absentee groups who came seeking special favors. What he most relied on for protection of individuals was local self-government,... favoring the early development of it in Virginia’s outlying lands, but until he could be reassured about the attitudes of Congress toward the small landholders, he preferred to depend on the states to protect them....
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Leading the drive for land nationalization were three large and international companies of land speculators: the Indiana Company, which claimed an enormous tract south of the Ohio, virtually consisting of what is now West Virginia; and the Illinois and Wabash companies, claiming a still vaster region, including much of present day Indiana and Illinois. All these enormous tracts were in Virginia-claimed territory. Heavily and prominently involved in the Indiana Company were: Robert Morris; the Wharton brothers, Philadelphia merchants and financiers; William Trent, brother-in-law of George Croghan; the Franks and Gratz families, international Jewish merchants, based in Lancaster, Pennsylvania and Philadelphia; Benjamin Franklin, his son William, and Benjamin’s son-in-law Richard Bache; and the Tory, Joseph Galloway. Archconservative and nationalist James Wilson was in the pay of the Indiana Company, and Thomas Wharton was selected by the speculators to distribute shares of their stock in bribes to members of Congress. The huge Illinois Company grant included virtually the same crew: Trent, the Franklins, the Whartons, Croghan, and Galloway. Patrick Henry, who later broke angrily with the land speculators, was at the time either in the pay of the Illinois Company or a direct participant in it, and accordingly favored the nationalization plan. The Wabash Company, claiming nearby lands, included the Gratz-Franks group and the entire top leadership of the Maryland oligarchy: Samuel Chase, Governor Thomas Johnson, former Governor William Paca (the brother-in-law of Robert Morris), and Charles Carroll of Carrollton. No wonder that Maryland fought fiercely for nationalizing the western lands! In late 1778, after the American forces had wrested the Illinois country from the British, the Illinois and Wabash companies merged their interests into one powerful force, which would then include Silas Deane and Conrad Gérard, French minister to the United States.

At about the same time, 1774–76, Virginia won a successful three-cornered conflict of its own with settlers and with speculative land companies. Its most important land struggle involved pioneers who had trekked across the Appalachian Mountains to settle on lands claimed by Virginia
south of the Ohio River in what is now Kentucky. In 1774, Lord Dunmore’s royal Virginia troops had driven the Shawnee Indians out of the Kentucky region (“Dunmore’s War”), and settlement across the mountains promptly ensued. At first, the settlers simply regarded themselves as the extreme western end of Virginia’s Fincastle County. Very quickly, the new settlers began to imbibe the very ideas of self-government for occupiers of new land that the Americans in general were using against Great Britain. The arguments were clearly applicable to the Kentucky settlers as against the remote government of Virginia.

Into this potentially explosive situation stepped an ambitious group of land speculators headed by Judge Richard Henderson of North Carolina. They formed the Transylvania Company in January 1775, and soon bribed the Cherokee tribe to come together and cede the company the large land area southwest of the Kentucky River and north of the Cumberland. Since the Cherokees, ensconced in the mountains to the south, made no use of this land anyway and didn’t really own it, they were happy to consent to this “sale” at the “Treaty of Sycamore Shoals” in mid-March. To head company operations in the Kentucky lands, Henderson hired the celebrated frontiersman Daniel Boone, who hacked a trail (the Wilderness Road) westward across the Cumberland Gap in the mountains.

In the next step of his ambitious scheme, Henderson persuaded the fewer than 200 settlers in Kentucky to send eighteen delegates to a convention at Boonesborough, on the Kentucky River, at the end of May 1775. Demagogically playing on ideas of independence and self-government, he eloquently proclaimed “that all power is originally in the people,” and the delegates unanimously decided to establish Transylvania as an independent colony, free of all eastern ties. The convention established new courts, militia, and scales of punishment for the new Transylvania, and established freedom of religion. Congress was petitioned to recognize the new region as a separate colony.

But Transylvania was not destined to remain an idyl for very long. Henderson quickly began to use its new-found independence to mulct the settlers unmercifully. He raised the price of land he charged to settlers and imposed quitrents as stiff as those charged in Virginia. The unfortunate settlers soon came to regard Henderson’s Transylvania scheme as a far worse threat than Virginia. Actually, the Kentucky settlers would have preferred to be independent and truly free of both Transylvania and Virginia. But for remote settlers facing an Indian threat, this was not a very realistic hope. Led by the citizens of Harrodsburg, the settlers turned to the idea of reincorporation into Virginia. In a convention held at Harrodsburg on June 6, 1776, the delegates selected the young frontiersman George Rogers Clark and a young attorney, John Gabriel Jones, to be
their delegates to apply for representation in the Virginia assembly as a new western county.

Their trip to the Virginia governmental seat at Williamsburg was a truly heroic one, for they ran into the newly erupted Cherokee War. In early July 1776, the prowar wing of the Cherokees, led by the fiery young chief Dragging Canoe, erupted to attack frontier settlements from southern Virginia to northern Georgia. Their timing was remarkably bad, for the Tory risings in the South, as well as the British attack upon Charleston, had already been defeated, and the militia of four southern states, especially of the Carolinas, were able to devote full attention to the Cherokees. Spurred on by handsome government payments for every Indian scalp, they had brutally and systematically burned and devastated every inch of Cherokee-cultivated land and property by August. Had the Cherokees waited another year to coordinate with Iroquois attacks, or to unite with other Indians, their war might have been far more successful. As it was, Dragging Canoe’s militant policy proved to be merely adventurist. In addition, his braves did not always bother to make a distinction between Tory and Whig settlers, and only succeeded in deeply alienating many southern Tories from the British cause with which the Cherokees were allied.

Finally reaching Williamsburg after their travail, Clark and Jones presented their case to the Virginia assembly in early October. There they argued against Henderson, who was aided by those apathetic to the west country and by Fincastle County, which stood to lose its claimed jurisdiction over Kentucky. But Kentucky was backed by Gov. Patrick Henry, George Mason, and Thomas Jefferson, who was always an eloquent friend of the settler. Finally, on December 7, 1776, Virginia voted to grant Kentucky admission as its westernmost county. The Henderson land clique had been totally foiled.

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Mérrill Jensen,
The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774–1781.
(Madison, Wisc: University of Wisconsin Press, 1962), p. 163.

*
Dumas Malone,
Jefferson the Virginian,
p. 244.

We have just seen that in the three most important specific controversies waged in Congress in framing the Articles of Confederation, the Dickinson draft was in one instance altered leftward (preventing Congress from seizing control of the western lands), in another, rightward (changing the basis of taxation from total population to property values), and in another, remained unchanged (rejecting a rightward shift from equal voting by state to voting by individual Congressmen representing population). Generally, however, the radicals were not awakened to the revolutionary (or rather, counter-revolutionary) significance of the centralizing Dickinson draft until Dr. Thomas Burke arrived to assume the radical leadership of Congress in the spring of 1777. Burke realized the sweeping centralization implicit in the Dickinson draft, and he saw that the third article, by reserving to each state the power of internal police, “consequently resigned every other power” to the central government. To block this, he proposed as a substitute a crucial amendment, which, as Article Two of the completed Articles of Confederation, formed the bulwark of state sovereignty against the pretensions of centralized power. In its final form, this Article read: “Each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” This amendment shifted sovereignty and reserved powers from Congress and the central government to the states. Fighting hard for his amendment against the opposition of James Wilson and, surprisingly, Richard Henry Lee, Burke overcame initial reluctance and was finally able to swing eleven states to his support, leaving only Virginia in opposition.

Furthermore, the Dickinson draft had created a council of state, functioning as a permanent executive body with irreducible powers. This provision for a virtually independent executive was excised from the Articles, and replaced by a “Committee of the States,” an arm of Congress which would have no substantial power. Indeed, the completed Articles, vigilant of any buildup of executive tyranny, expressly forbade Congress from vesting in the committee any power to make war or peace, to regulate money or coinage, or any of the other fundamental Congressional powers.

The Dickinson draft had prohibited the states from levying any duties or tariffs contradicting the provisions of any treaties made by Congress. This was amended on the floor of Congress, however, to provide that no treaty could impair the power of any state to prohibit imports or exports, or to impose its own tariffs or duties, provided that foreigners and its own citizens were subject to them equally.
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