John Rutledge: Delegate from South Carolina, 1765–1775

John Rutledge is one of those members of the founding generation who often get overlooked. Yet, for every Jefferson, Adams, or Washington, there were many like Rutledge who focused on the nitty gritty work of building a new country. Rutledge was born in 1739 to an Irish father and his fifteen-year-old bride. The oldest in a well-off family already among Charleston’s elite, he received a solid education, studied law locally, and then moved to London to continue his studies at Middle Temple. He returned to Charleston and opened his own practice in 1761, then was promptly elected to the Commons House of Assembly, often dubbed the General Assembly, in which he served until 1775. Rutledge’s law practice grew quickly, earning him a reputation for the clarity, logic, and concision of his arguments.[1]

Rutledge first tasted real political controversy in 1762. South Carolina’s new governor, Thomas Boone, prorogued the standing South Carolina General Assembly as having been elected under a defunct law and called for new elections. When the new session began, Boone refused to administer the oath of office to Cristopher Gadsden. Boone’s ostensible reasons concerned flaws in existing election laws which South Carolinians had papered over for decades. But he and the assembly had been struggling over budget issues and Boone may have wanted to make a point. The governor’s sudden interest in enforcing election-law technicalities took on a whiff of British high-handedness. John Rutledge chaired a committee that argued Boone’s new interpretation of existing law was illegitimate and unprecedented because the right of representation drew from the English constitution and the liberties of Englishmen, not from specific laws, imperfect as the latter might be.[2] Boone refused to discuss specific elections and repeatedly adjourned the assembly or delayed its next session. There things remained until Boone left the colony in 1764.

Lieutenant Governor William Bull, Jr. assumed the governor’s responsibilities and was quickly embroiled in the Stamp Act crisis. In the summer of 1765, the assembly sent a delegation to the Stamp Act Congress; Rutledge, Gadsden, and Thomas Lynch were appointed. At the meeting, Gadsden and Lynch more aggressively asserted colonial liberties, but Rutledge chaired the committee tasked with drawing up a petition to the House of Lords. After South Carolina’s delegates returned to Charleston, the colonial Assembly adopted resolutions similar to those passed by the Stamp Act Congress and adjourned.[3] A battle over compliance ensued as merchants, lawyers, and officials debated the ability to continue in the absence of stamped paper. Rutledge and several colleagues argued that the courts must remain open as a function of government, even though they would not use stamped paper. Rutledge’s involvement highlights his focus on the functioning of society and its institutions, more than intense engagement with political philosophy. The Act’s repeal eventually rendered the question moot. Thus, still in his twenties, John Rutledge had established himself as a defender of English rights in the colonies.

Tensions between Britain and South Carolina continued to escalate after the Stamp Act crisis, largely over perceived abuses by British customs officials and the taxing and spending authority of the Assembly. As a legislator, Rutledge served on several committees defending the colony’s prerogatives, but others led the charge. The conflict resulted in a political stalemate between the Assembly and the Governor, with little business being conducted in the years prior to the American Revolution.[4] Taken in its entirety, the process radicalized Rutledge and his younger brother Edward, who returned from his legal studies in England just as things were coming to a head.

In 1774, when Massachusetts appealed to the other colonies for support in response to the “Intolerable Acts,” a group of “prominent men” in Charleston met in a tavern and called for a “General Meeting” of South Carolinians from across the province on July 6. The resulting group was self-selected, representing those elite interests from across the colony most motivated and able to respond.[5] Officially, 104 men, including John and Edward Rutledge, gathered to decide the best course. But the meeting was public and the chairman ruled anyone present could vote. At times the number reached 400.[6] Delegate opinion varied widely, but there was widespread preference for an appeal to the King asserting colonial rights, a position Rutledge embraced.[7] Participants were divided on the question of a trade embargo, which would likely come up, and could only agree on sending delegates.

Debate over the delegation’s authorities was heated. Participants were at an impasse until Rutledge offered a solution: issue no instructions and give the delegates full authority to decide the best interests of the colony and pledge South Carolina’s commitment to abide by the delegates’ decisions. (The General Meeting, of course, lacked such legal authority.) At first glance, it was a vast grant of power. However, when pressed over what South Carolinians should do if the delegates overstepped, Rutledge’s alleged response was “hang them.”[8] The threat, most likely meant euphemistically, would incentivize self-restraint by delegates. Moreover, the meeting word-smithed their instructions, directing them “to concert, agree to, and effectually prosecute such legal measures as in the opinion of those deputies, and of the deputies of the other colonies, should be most likely to obtain a repeal of the late acts of Parliament and a redress of American grievances.”[9] Thus, actions had to be legal and unanimous before the South Carolinians could agree to them. So the delegates had an “out” if the Congress went farther than they wanted. South Carolina would only be bound by what its delegates agreed to. The meeting then selected Henry Middleton, Thomas Lynch, Christopher Gadsden, John Rutledge, and his younger brother Edward to attend the First Continental Congress. (The General Assembly later ratified the decisions of the meeting and adopted the delegation as “colony-approved” before Lieutenant Governor Bull could stop it.) Rutledge, a well-known opponent of a trade embargo, must have mollified those concerned about such an outcome from the Congress. After selecting delegates, the meeting resolved to establish a General Committee, dominated by coastal planters and also known as the “Committee of 99” to act in its stead. The General Committee later became the de facto Committee of Correspondence for South Carolina.[10]

In Philadelphia John Rutledge did not make a favorable first impression on John Adams: “Mr. Rutledge the Elder, was there, but his Appearance is not very promising. There is no Keenness in his Eye. No Depth in his Countenance. Nothing of the profound, sagacious, brilliant, or sparkling in his first Appearance.”[11] Adams’ impression did not improve with time, dismissing Rutledge’s rhetoric and oratory, perhaps finding them too straightforward. (He was even less kind to Edward.) Adams’ fellow firebrand, Patrick Henry, however, reportedly admired Rutledge’s qualities as a speaker and conservative Joseph Galloway, respected Rutledge’s ability to see both sides of an issue.[12] Indeed, Rutledge the elder kept an air of reserve about him, preferring to let things develop rather than lead, and to slow any momentum towards confrontation with Britain. He reminded the delegates that they had no legal authority or means of compulsion at hand.[13] Having received instructions in Charleston that the South Carolina delegates could only go along with “legal” measures and now arguing that the Continental Congress had no authority to issue legal instructions, Rutledge had constructed an argument for inaction. It may have helped rein in the radicals in favor of his more incremental and legalistic approach to resolving disputes.

Rutledge played a role in drafting the final Declarations and Resolves, including the trade embargo vis-à-vis Great Britain. He argued in favor of basing those assertions on the English Constitution and against concepts of natural law and the colonial charters, adhering to a formula he had crafted earlier in his career. The England-educated lawyer insisted on seeing himself as an Englishman entitled to all the rights as such, not as a radical defending universal natural rights. (For Rutledge, rights enshrined in colonial charters only emphasized the fact that British citizens living in the colonies were different from proper Englishmen.) The South Carolinian lost, but his relative moderation came through.[14]

Curiously, the South Carolinians proposed an immediate and comprehensive trade embargo, to include exports. An immediate embargo was unacceptable to the mid-Atlantic colonies, Maryland, Virginia, and North Carolina. Their primary export, tobacco, took a year to get to market. (South Carolina’s exports went to market the same year they were grown.)[15] Similarly, grain from the northern colonies could be exported anywhere, whereas the primary market for South Carolina was England. Thus, phased embargos limited to Great Britain would disproportionally hurt South Carolina. Rutledge knew all this and likely proposed the embargo knowing it would be rejected as too extreme, essentially killing the idea before the northern colonies could build momentum behind it. In the end, an export embargo would commence in September 1775, with an exception for rice—one of South Carolina’s main export crops. It was a sophisticated and risky bit of tactical political maneuvering on Rutledge’s part, especially since the South Carolina General Meeting—John Rutledge included—had discussed and opposed an export embargo before selecting its delegates. While he might frustrate John Adams and other Congressional radicals, Rutledge could return home with no fear of being hanged for having overstepped, or so he thought.

In fact, the rice exemption immediately split South Carolinians along geographic lines. William Henry Drayton, a respected attorney and early leader in South Carolina’s revolutionary movement, recalled the debate as “long and violent.”[16] The interests of low-country rice planters were well-served, but indigo planters, the coastal mercantile class, and backcountry farming and timbering interests would suffer mightily. Rutledge explained that the Continental Congress was committed to some sort of embargo. Securing the rice exemption was the best that the delegates could do. The South Carolina body, which had evolved into a Provincial Congress, preferred to spread the pain of an embargo more evenly and eventually settled on a convoluted scheme in which rice planters would compensate other interests for their trade losses. Then they argued the rice exemption should be repealed when the Continental Congress next met.[17] Rutledge had miscalculated in securing such a limited exemption, either from naked self-interest or a narrow, blinkered, low-country-planter view of the colony.

The Rutledge brothers were reelected to the Second Continental Congress, despite the anger and sectionalism triggered by their position on rice exports, “to represent this Colony . . . with full power to concert, agree upon, direct and order, such farther measures, as in the opinion of the said Deputies, and the delegates for the other American Colonies to be assembled, shall appear to be necessary, for the recovery and establishment of American rights and liberties; and for restoring harmony, between Great Britain and her Colonies.”[18] In other words, their instructions were much as before, but John Rutledge surely must have been chastened by the firestorm he had provoked during the First Continental Congress. He remained a moderate, often aligning himself with John Dickinson, particularly in offering the so-called “Olive Branch Petition.” Even after Lexington and Concord, he held out hope for some form of reconciliation with Great Britain, but increasingly on terms respecting colonials as full-fledged Englishmen. Nevertheless, Rutledge was creeping into the radical camp.

Although he served on several committees dealing with the army, currency, and an examination of the conflict’s causes, the issue of colonial governance may have affected Rutledge the most. On June 2, President Hancock laid a request for advice from Massachusetts. How could the colony go about setting up a civil government? It was a question well-suited to the lawyer in John Rutledge and one that Adams thought he took to “with apparent Pleasure.”[19] Rutledge chaired the committee charged with drafting an answer. It concluded that the governor and lieutenant governor of Massachusetts had effectively vacated their offices by failing to follow the directions of the colony’s charter at a time when Gen. Thomas Gage and the British Army were essentially waging war on loyal British subjects. Therefore, the committee recommended:

That in order to conform as near as may be to the spirit and substance of the charter it be recommended to the Provincial Convention to write letters to the inhabitants of the several places which are entitled to representation in the Assembly, requesting them to choose such representatives and that the Assembly when chosen do elect consellors, and that such Assembly or Council exercise the power of government until a Governor of his Majesty’s appointment will consent to govern the colony according to its charter.[20]

It was an artful recommendation, advancing the radical goal of establishing government outside British authority free of British direction while preserving the notion that reconciliation with Great Britain and under British authority was both desirable and possible. What mattered was not so much the specifics of the recommendation, but the fact that Congress eventually made it. Once established, formal and representative governments outside of British authority would be difficult to dissolve. In October, New Hampshire requested similar guidance, at which point Rutledge raised similar inquiries on behalf of South Carolina. In all three cases, revolutionary governments already existed; Congress essentially gave them its blessing and recommended a more formal process for establishing their legitimacy. Adams, who had wanted to change references to “colonies” to “states,” gave way on the matter to Rutledge’s preference that they continue to refer to the new entities as colonies.[21] The South Carolinian still held out hope for reconciliation with the mother country, but he continued moving in Adams’ direction. In simple truth, facts on the ground were changing faster than Rutledge’s views. He would find that out shortly, when he returned to South Carolina and took up leadership posts to formalize its ad hoc revolutionary government, eventually becoming president and then governor while leading the state through its most harrowing wartime experiences.

[1]Cecil B. Hartley, Heroes and Patriots of the South: Comprising Lives of General Francis Marion, General Andrew Pickens, and Governor John Rutledge (Philadelphia: G.G. Evans, 1860), 291-292; James B. Longacre and James Herring, The National Portrait Gallery of Distinguished Americans, vol IV (Philadelphia and New York: American Academy of Fine Arts, 1839), 8/1; “John Rutledge,” www.carolana.com/SC/Governors/jrutledge.html; “John Rutledge,” National Park Service, www.nps.gov/people/john-rutledge.htm; James Haw, John & Edward Rutledge of South Carolina (Athens, GA: The University of Georgia Press, 1997), chapter 1. John’s uncle Andrew (circa 1706-1755) was also an attorney and established the family in South Carolina in 1730. John also had a younger brother named Andrew (1740-1772). Histories of the period often confuse the two. Charleston was referred to as Charles Town, but I’m using Charleston throughout for the reader’s ease.

[2]W. Roy Smith, South Carolina as a Royal Province (New York: The Macmillan Company, 1903), 343; Henry Flanders, The Lives and Times of the Chief Justices of the Supreme Court of the United States, Vol. I (Philadelphia: J.B. Lippincott & Co., 1874), 453-454; Haw, John & Edward Rutledge, 25-26.

[3]Smith, South Carolina as a Royal Province, 351; Longacre and Herring, The National Portrait Gallery of Distinguished Americans, 8/2; Edward McCrady, The History of South Carolina under the Royal Government, 1719-1776 (New York: Macmillan & Co., Ltd., 1901), 576-577; Haw, John & Edward Rutledge, 28-31. The Carolinians lacked authority to sign the petitions as representatives of the colony, necessitating the Assembly’s adoption.

[4]Haw, John & Edward Rutledge, 44-54.

[5]McCrady, The History of South Carolina under the Royal Government, 734-735.

[6]Haw, John & Edward Rutledge, 59.

[7]Flanders, The Lives and Times of the Chief Justices, 472.

[8]Hartley, Heroes of the South, 295; Longacre and Herring, The National Portrait Gallery of Distinguished Americans, 8/4; Haw, John & Edward Rutledge, 60.

[9]Quoted in McCrady, The History of South Carolina under the Royal Government, 739-740. Emphasis added.

[10]Walter Edgar, Partisans and Redcoats, Special Preservation ed. (New York: William Morrow, 2001), 28; John Drayton, Memoirs of the American Revolution, from its Commencement to the Year 1776, Inclusive; as Related to the State of South Carolina (Charleston: A.E. Miller, 1821), 131. These memoirs were assembled from a draft memoir by William Henry Drayton, a key participant in the revolution until his death in 1779, by his son. William Henry Drayton was a more ardent defender of colonial prerogatives and leading advocate for resistance to the crown in South Carolina. Haw, John & Edward Rutledge, 60-61; Mary Beth Norton, 1774: The Long Year of Revolution (New York: Alfred A. Knopf, 20201), 150-151.

[11]“September 1, 1774,”Founders Online, National Archives, founders.archives.gov/documents/Adams/01-02-02-0004-0006 (original source: The Adams Papers, Diary and Autobiography of John Adams, vol. 2, 1771–1781, ed. L. H. Butterfield (Cambridge, MA: Harvard University Press, 1961), 118–146).

[12]Haw, John & Edward Rutledge, 62.

[13]“Notes of Debates in the Continental Congress, 6 September 1774,” Founders Online, National Archives, founders.archives.gov/documents/Adams/01-02-02-0004-0006-0007 (original source: The Adams Papers, 2: 124–126).

[14]Haw, John & Edward Rutledge, 63.

[15]Flanders, The Lives and Times of the Chief Justices, 486-487.

[16]Drayton, Memoirs of the American Revolution, 168-169; McCrady, The History of South Carolina under the Royal Government, 765; Flanders, The Lives and Times of the Chief Justices, 485; Norton, 1774, 264-265.

[17]Drayton, Memoirs of the American Revolution, 171-172, 186-187. Drayton, closer politically to Adams than the moderate Rutledge, still admired the latter’s rhetorical abilities.

[18]Drayton, Memoirs of the American Revolution, 176-177.

[19]“Fryday June 2. 1775,”Founders Online,National Archives, founders.archives.gov/documents/Adams/01-03-02-0016-0045 (original source:The Adams Papers, 3: 351–352; Flanders, The Lives and Times of the Chief Justices, 512.

[20]Edward McCrady, The History of South Carolina in the Revolution, 1775-1780 (New York: The Macmilllan Company, 1901), 106.

[21]McCrady, The History of South Carolina in the Revolution, 107; November 4th, 1775,” Founders Online, National Archives, founders.archives.gov/documents/Adams/01-03-02-0016-0051 (original source: The Adams Papers, 3: 357–359.