Maurice Merleau-Ponty (1908-1961), a French philosopher, once said that the definition of a traitor was “a patriot whose cause was lost.” In the time of the American Revolution, it could well be said of those who were considered Loyalists, that a “Loyalist was a patriot whose cause was lost.”
Born in Switzerland in 1724, Hans Joachim Zubly attended college in England where he obtained his divinity degree. While there, his father immigrated to South Carolina. After graduation he moved to South Carolina to live with his father; somewhere along the way he changed his first name to John. He then went to the College of New Jersey, later known as Princeton University, and obtained a Doctor of Divinity degree, and was always referred to thereafter as Dr. John J. Zubly. In 1760 he was invited to be the minister at the Independent Presbyterian Church in Savannah, Georgia, which he accepted. He remained minister there until his death. By the time of the revolution he had purchased several pieces of property and had become rather wealthy.
When the British Parliament’s first attempt to tax American colonies, the Stamp Act, was repealed in 1766, there was an audible sigh of relief throughout America. There were church services in all the colonies, prayers of thanksgiving were said, not only for the relief from the tax, but also in the hopes that the chaos and turmoil would cease. One such church assembly was held at the Presbyterian church in Savannah on June 28, 1766 and the sermon was given by the Rev. John Zubly. It was entitled, simply enough, “The Stamp Act Repealed.”
The sermon was based on a biblical text from the New Testament, Galatians 5:13,15. “Brethren, ye have been called to liberty; only use not liberty as an occasion of the flesh. But if ye bite and devour one another, take heed that ye be not consumed of one another.” In this sermon, we see a key element in Zubly’s thinking, one that he held onto for the rest of his life. The British Empire was one entity and Americans and Britons were both members, much like members of the same family, and that it was unnatural to separate the members of a family.
He began his sermon with a story of the people of Israel as they occupied the land of Canaan as described in the book of Joshua. He described how the tribes of Ruben, Gad and half of the tribe of Manasseh settled on one side of the river Jordan and the rest on the opposite side. The people of Ruben, Gad and Manasseh decided to build an alter on the border between the two settlements, thus marking a boundary between the two even though “they were the same people, united by the same ties, natural, religious and political.” The people on the other side “took alarm at these proceedings and looked upon this as a step towards independency, and separation from its brethren.” Then, Zubly reported, the people of Israel “gathered themselves to go up to war against Ruben, Gad and Manasseh,” and, “that their minds were thoroughly inflamed, and everything was ready for blood and slaughter.” But just before things were to get completely out of hand, “a solemn message” was sent to the “separated tribes, and when they came rightly to understand one another, the fidelity of the distinct tribes fully appeared:
a messenger said to the tribes of Ruben, Gad and Manasseh, ‘this day we perceive that the Lord is among us, because ye have not committed this trespass against the Lord . . . and this pleased the children of Israel; and the children of Israel blessed God . . . the spark which had like to kindle so great a fire was reasonably extinguished and good understanding and mutual harmony was restored, every man (went) home and lived quietly under his fig tree . . . in the land which God had so lately given unto them.
The tensions so recently experienced between America and Great Britain were, in Zubly’s opinion, unnatural. Talk of independence threatened the nation, the nation being the British Empire. Parliament in rescinding the stamp tax had substantially calmed the waters in America and people were, again, feeling patriotic about their place in the Empire. Zubly then waxed poetic in his conclusion:
Come then my friends, let us make mention of the muses of the Lord, according to the multitude of his loving kindness . . . should we not thankfully review every circumstance that brought about this pleasing event and offer our humble and sincere thanks to the kind provinces of God . . . That all our fevers have subsided, that all the jealousy has been removed, that the dark night which seemed to long over our heads is turned into the light of a hopeful morning, surely calls for our loudest and sincerest thanksgiving.
Parliament did try and understand something of what Americans were saying when they repealed the stamp act. They said, in effect, “Ok, you object to being taxed directly, so we will simply tax imports. If you don’t want to pay the tax, don’t buy that product that is being shipped to you with a tax on it.” But then Parliament went one step further. Just to make sure that the colonists got the message that the British Parliament was the supreme legislature in the empire they passed an act giving Parliament the power and the right to legislate for America “in all cases whatsoever.” No matter that the various colonial charters gave the right for each colony to establish its own legislature, the real legislative authority rested solely with the British parliament in London and it could make laws for each and every American in all cases, bar none. This was a new dynamic. It basically made the colonial legislatures moot. Any act a colonial legislature could pass could be overturned by Parliament.
When this news hit America the resistance movement became active all over again. This time it was not just a group of disenchanted common folk who were involved in the resistance movement, but a growing number of middle class and elite members of the colonies who began to take notice.
So on February 1, 1769 Zubly published a pamphlet with a lengthy title: A Humble Enquiry Into the Nature of the Dependency of the American Colonies Upon the Parliament of Great Britain, and the Right of Parliament to Lay Taxes on the Said Colonies.
In this pamphlet Zubly, in this writer’s opinion, made the most clear argument as to why Parliament totally erred in attempting to force American subservience. Zubly’s explained the complete illegality of Parliament’s actions with respect to legislating for America. And yet independence was a step that Zubly would not take. For the rest of his life, he held on to the idea that Parliament had no authority to legislate for America at all, and that any attempt to do so must be met with resistance, yet he would not deny his loyalty to the crown of Britain and his concept of free Englishmen in a worldwide British Empire. He held on to those two concepts even as more and more Americans around him were finding that the two were becoming increasingly incompatible.
Zubly did discuss Parliament’s right, or the lack thereof, to tax Americans, but it is his discussion of the phrase allowing parliament to “legislate for America in all cases whatsoever” that he made his most powerful argument. So persuasive is his argument that unless Parliament was to rescind that act, there was no choice but to proceed to independence.
First, concerning taxation, Zubly asked, “Can a man be bound by some laws and not others, if he has not consented?” If so, what are the consequences? He contended that to be bound by any law to which a person has not consented to is to make him a slave. Free men were entitled to keep their property. Free men could only surrender their property voluntarily; to take it forcibly was slavery. There were only two ways a free man could surrender his property: either in person, or by a representative chosen in an election.
Zubly then discussed what the British Parliament was and what its powers were, and from whence got its authority. Those who defended Parliaments right to tax Americans did so on the theory that the empire was a unified whole, a single entity, and as the empire was British the British Parliament was the supreme legislative body for that empire. Zubly contended that that premise rested on two issues, and both were required to be present to make the concept true. First, “the parliament of Great Britain is the supreme legislature in all the British Empire.” Second, “all British Dominions therefor ought to pay obedience in all cases and in all ways in which they are mentioned.”
“The Empire” wrote Zubly, “consists of England, Ireland, The Islands of Mann, Jersey and Guernsey, Gibraltar, Minorca, Senegal, Bombay, and the Colonies of America”. He then described how each part of the empire was governed differently. He described each in its turn, but we will concentrate on two, the American colonies and Ireland.
The American colonies, he said, “being settled upon lands discovered by the English, under charters from the crown of England, were always considered as a part of the English nation . . . and looked upon as dependents of England.” He pointed out that the charters of the American colonies predated the union between England and Scotland which created Great Britain. The colonies, he argued, owed their allegiance to England, not to Great Britain. He went on to say that “by the English constitution . . . [all] are entitled to certain privileges, indefeasible, unalienable, and of which they can never be deprived of but by the taking away of that constitution which gives them these privileges . . . This is an undeniable principle and ought to never to be lost out of our sight.”
He made an important point, that Great Britain not only had a Parliament, it also had a constitution from which parliament derived its authority “and not the constitution from the parliament . . . that the liberties of Englishmen arise from and depend on the English constitution, which is permanent and ever the same.”
Zubly then got to the second principle of the theory that the Parliament was the supreme ruler in the empire. Ireland, he pointed out, was a conquered land. It had been made a part of the empire by force of arms, “nevertheless it has a parliament of its own.” Zubly noted that Ireland had recently, through its Parliament, begun to usurp the powers of the British Parliament by declaring that the Irish Parliament could nullify the laws of the British Parliament affecting Ireland. The British Parliament quickly corrected this by passing A Bill for the Better Securing the Dependency of Ireland.The bill stated that it was “for the better securing of the dependency upon the crown of Great Britain.” and further, “that the said kingdom of Ireland has been, is, and of right, ought to be subordinate unto the Imperial crown of Great Britain.” The Irish bill said nothing of Ireland being subordinate to the British Parliament, but solely to the crown of Great Britain.
At this point he addressed how differently Parliament treated the American colonies. He reminded his readers that the Irish bill was meant to stamp out any thought of independency. The American bill was meant to do the same thing, but in the case of the American bill the British Parliament took things one step further. And here is where Zubly made his best argument. He cited the American Declaratory Act passed on March 16, 1766:
An act for the better securing of the dependency of His Majesty’s Dominions in America upon the crown and parliament of Great Britain . . .that the said bodies and plantations in America have been, and are of right, to be subordinate unto and dependent upon the Imperial Crown and parliament of Great Britain . . . that parliament assembled had and of right, ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of the colonies of America subject to the crown of Great Britain, In all cases whatsoever.
Zubly pointed out, and forcibly so, that only America, of all the dominions and colonies of the British Empire, was to be subject not just to the crown of Britain, but also to its Parliament. This left the American colonial legislatures moot. Americans were subservient to Parliament and without any representation in the legislative body that was to govern them. He then asked, in so many words, “does parliament have the authority to do this; is it legal?”
The authority of Parliament, said Zubly, rested on two things. The first was that its members must be elected by the people – no private person could make a law for anyone. The power to make laws was solely in Parliament assembled.
Once Parliament was assembled, from whence comes the authority to make laws? That authority, said Zubly, came from the British constitution. They can only pass laws within the framework described in the constitution and from nowhere else. That constitution limits the power of the Parliament.
Based on the above premise, Zubly then got to the center of the issue:
The sole question is, is it, or is it not, the right of Englishmen not to be taxed where they are not represented . . . Let those who make light of American grievances give a plain answer to this plain question, Are the colonies represented in parliament? If they are, by whom, or since when? If not, once more, is it, or is it not to be taxed where it is not represented? Here is where the matter hinges.
As we know, this question was never acknowledged in Britain. For the next ten years Parliament kept up with the premise that it had the authority, whether Americans admitted it or not.
In 1772 Zubly again spoke out publicly when a dispute arose in Georgia between the royal governor, who stood as the king’s representative in the colony, and the Georgia assembly. The royal governor refused to agree to the assembly’s choice of a speaker. He wanted someone different and the assembly refused. Zubly entered the fray on behalf of the assembly in a published reply demonstrating that in the matter of election of a speaker of the assembly, the role of the governor was purely ceremonial based both on custom and the law. The British constitution, Zubly argued, gave the House of Commons sole power to elect its own speakers, and the king’s role was merely ceremonial, hence the same rule applied to the royal governor’s role with regard to the Georgia assembly.
The relationship between America and Britain continued to deteriorate. In the summer of 1774 a Continental Congress convened in Philadelphia to discuss options and seek some kind of unified response to Parliament’s insistence on legislating for America. All the colonies sent delegates to except Georgia. In 1773, excluding Native Americans, Georgia had only 33,000 residents, half of whom were Black and enslaved. The colony was so underpopulated that it required an annual subsidy from the British government to meet its administrative costs. In 1774 loyalism was still the majority opinion in Georgia.
The Congress passed a number of resolutions and sent a joint petition to the king begging him to reign in those in Parliament who were, Americans felt, overstepping their bounds. But no king had the power to reign in Parliament anymore, not since 1688, and in this matter the king basically agreed with his Parliament. In their eyes, it was the Americans who were overstepping their bounds. The Continental Congress, having sent their petitions, adjourned and agreed to meet again in May 1775 to determine what future action might be needed. When the Congress reconvened, fighting had already broken out in Massachusetts and the British Army was bottled up in Boston. And Georgia was again not present at the Congress.
By this time, though, opinions in Georgia had shifted enough that pro-resistance was becoming increasingly common. Those in favor of sending delegates to the Continental Congress were able to get the people to elect a provisional congress in Georgia with the task of determining whether or not to send a delegation to the Congress in Philadelphia. One of the first decisions of the Provisional Congress was to declare day of fasting and prayer for the colony. On that day, the members of the congress convened at Zubly’s Presbyterian church to listen to a sermon in which he spoke specifically to them. It was in July 1775 that Zubly rose to give what is probably his most famous sermon. With the Continental Congress in its second session and open warfare in Massachusetts, Zubly well understood the seriousness of the occasion.
He began his sermon saying, “a people that claim no more than their natural rights, in so doing, do nothing displeasing to God,” but to go beyond that and expand the boundaries to include independence is to go beyond what God would allow.
He then addressed the purpose of the Georgia congress.
When a people think themselves oppressed, and in danger nothing can be more natural than that they should inquire into the real state of things . . . This, I take to be the design of the present meetings of persons deputed from every part of the country . . . So, speak ye, and so do, as they that shall judged by the law of liberty.
Zubly told the assembly they must consider two things. First they must know “that we are judged by the law of liberty,” and second the assembly must “act worthily and under the influence of this important truth upon every occasion.” These two statements, he felt, were the only way a society could behave if it understood that humankind was bound by the law of liberty. “Wherever there is society, there must also be law; it is impossible that society should subsist without it. All laws ought to be made for the good of man.”
He emphasized that this law of liberty is universal, that it can be found in Jewish scriptures as well as Christian.
There are but two religions which are concerned with the two charges [with respect to the law of liberty]. The Jewish and the Christian. As to the Jewish it seems really strange that anyone should charge it with the founding of despotism when by one if its express rights at certain times it proclaimed liberty throughout the land and to the inhabitants thereof . . . and the whole system of that religion is so replete with laws against injustice and oppression, it pays such an extraordinary regard to the prophets and gives such a charge to the rule of justice and fear of God, and to consider those over whom they judge as brethren, even when dispensing punishments, and forbids excess, that it is really surprising that anyone acquainted with its precepts should declare it favorable to despotism or oppression.
He then made an important point and in so doing interpreted the scriptures in the broader sense. He said that the law of liberty was not just given to Christians and Jews, but to all humankind:
To the generality of mankind, He gave no written law, but yet left not Himself without a witness among them; the words of the law being written in their hearts, their conscience also being written, it cannot be said they were without law, while what they were to do, and what they were to forbear, was written in their hearts.
He reminded his listeners that there was no contradiction between liberty and law. In a just society, both are necessary: they are like two sides of the same coin—it is not a legitimate coin unless both sides have been stamped. So, a just society demands law and liberty.
Law and liberty are perfectly consistent; liberty does not consist in living without constraint. For were all men to live without restraint, as they please, there would be no liberty at all; right, justice and property must give way to power . . . well-regulated liberty of individuals is the natural offspring of laws, which prudently register the rights of the whole community . . . So, all liberty which is not regulated by law is a delusive phenomenon, and unworthy of the glorious name.
He further declared to them that a society can only live in the law of liberty, made known by God to all humankind, and that God is not only the creator of this world, but is also its moral ruler and therefore “He must be its judge.” The God that judges is an absolute, and one disregards that maxim at one’s peril:
We are not to imagine because the gospel is a law of liberty, therefor men will not be judged; on the contrary, judgement will be judged more severe against all who have heard and professed the gospel, yet behaved contrary to its precepts and doctrines . . . so do, as they that shall be judged by the law of liberty.
He charged his listeners that the law of liberty was to be the method and mindset when they were to begin their deliberations.
I mean not to anticipate and direct your councils; but from your desire I should speak on this occasion; I take it for granted you will permit me to offer some hints and design of our present meeting. Let it be a standing rule with everyone that is to sit in the deliberations and again remind them “so speak and to so do as one that is to be judged by the law of liberty.” Let us most carefully avoid everything that might make us incur the displeasure of God, and wound our consciences . . . let the law of liberty, by which you are to be judged be your constant rule of all your words and actions.
In concluding he had one final word for his listeners, and this theme he was to keep close to his heart always.
Never let us lose sight that our interest lies in this perpetual connection with our mother country . . . Let us convince our enemies that the struggle of America has not this rise in a desire of independence . . . we prefer only this consideration, that we be virtuous and free . . . Endeavor to act like free men, like loyal subjects . . . and so, you will so act, “as they that are to be judged by the law of liberty.”
The Georgia Provisional Congress did decide to send a delegation to the Continental Congress in Philadelphia. On September 7 John J. Zubly was duly elected to be one member of the delegation, and the delegation was directed to report to Philadelphia as soon as possible. There, Zubly would run into a man who would become his nemesis, a brash young delegate from Maryland named Samuel Chase, and Zubly’s life would be changed.
New Georgia Encyclopedia, www.georgiaencyclopedia.org/articles/history-archaeology/john-j-zubly-1724-1781/.
www.belcherfoundation.org/law_of_liberty.htm. All subsequent quotes are from this source.