Suspected of Independence

PART I

THE PATRIOT

1

The Early Years

ON MAY 3, 1679, AS THE MIDDAY SUN EMERGED FROM BEHIND WHITE clouds over Magus Muir, near St. Andrews, Scotland, Archbishop James Sharpe and his eldest daughter, Isabelle, were riding in his horse-drawn carriage when it was intercepted by a band of “Covenanters,” God-fearing Scottish nationalists. After shooting the coachmen, nine assassins drew their swords and repeatedly stabbed the archbishop as Isabelle looked on in horror.

James Sharpe, a Presbyterian minister, had been a political moderate during the decades following the English Civil War, but the English king, Charles II, nevertheless imprisoned him. Rather than spend the rest of his life in a dungeon, Sharpe converted to the Anglican Church and swore allegiance to the Crown. In return, Charles made Sharpe archbishop of St. Andrews and chief prelate of all of Scotland. Sharpe thereupon embarked on a strategy of repressing the religious practices and teachings of Covenanters—devout Presbyterians—whom he had formerly represented. The archbishop brutally enforced the Act of Supremacy, which gave the king complete authority over the church. Viewed as a traitor, Sharpe was widely despised throughout Scotland and news of his death was greeted with jubilation.

The king ordered a military tribunal to investigate the crime. John Graham Claverhouse, the viscount of Dundee, who had earned the nickname “Bloody Clavers” for his brutal repression of religious dissent, headed the tribunal. Claverhouse ordered the constable to round up dozens of Covenanters, including a well-known sympathizer, William McKean. Descended from the McDonald clan, the McKeans were highlanders from the rugged west coast of Scotland who made their living as farmers.

Standing before Claverhouse, McKean denied complicity in the murder of the archbishop but defiantly declared the killing “a wonderful deed.” Claverhouse, who ironically would marry into a Covenanter family a decade later, reprimanded McKean but ultimately released him. Although a free man, McKean feared retribution and, with his wife, Susannah, fled Scotland for the north of Ireland, where many Presbyterians had already relocated. While there, Susannah gave birth to a son who they named William. Notwithstanding their Scottish heritage, from this point forward the McKeans identified themselves as Irish.

But their stay in Ireland was brief; learning of opportunities in the New World, the McKeans packed up their belongings once again. They set sail for America, leaving behind a hardscrabble, often poverty-stricken, existence for the promise of a better life. They were part of a wave of Ulster-Scots, immigrants who were traditional Presbyterians and who had battled against both their Catholic neighbors and the English overlords.¹

The McKeans settled in Chester County, Pennsylvania, an Irish American enclave ruled by William Penn, a Quaker and wealthy member of the English aristocracy. Charles II had granted to Penn a charter for land between the 40th and 43rd latitudes totaling twenty-nine million acres. Even though he was ultimately responsible to English law and to the Crown, Penn’s promise of religious freedom proved a magnet for thousands of settlers.

In the early seventeenth century, Chester County offered ideal conditions for farming. Pennsylvania and the Delaware Valley had been the ancestral homeland of Iroquois, Shawnee, and Susquehanna Native Americans. Conflict with the new European colonists eventually drove the Indians out of their coastal homes to new settlements beyond the Allegheny Mountains. They left behind lush meadows, bountiful hardwood forests, and pristine rivers and streams.

By the time the McKeans arrived, Penn had established a representative government with a governor, a council, and an assembly elected by freeholders. He granted a Charter of Privileges, which weakened but nevertheless continued proprietary rule. Governing the vast territory of Pennsylvania became increasingly unwieldy, so Penn granted the three lower counties of his colony, an area that he christened Delaware, a separate government, but one that shared a governor with Pennsylvania.² It was in the small hamlet of New London, Delaware, that Thomas McKean was born on March 19, 1734.

THOMAS NEVER KNEW HIS SCOTTISH GRANDPARENTS, WHO HAD DIED decades earlier. When his mother Letitia died in the fall of 1742, Thomas, only eight years old, his older brother Robert, and the two toddlers, William and Dorothea, might as well have been orphans. Their father was a failed innkeeper and likely an alcoholic, totally incapable of providing for his family.³

Thomas’s younger brother and sister went to live with their aunt and uncle. With prodding from Letitia’s parents, William sent eight-year-old Thomas and ten-year-old Robert to the Reverend Francis Alison, Presbyterian minister of the New London rectory who had recently established a boarding school for young boys. The school had only a dozen students, and Thomas and Robert were among the first. They would remain at the school for nearly a decade.⁴

In the early eighteenth century in colonial America, access to primary school education varied widely. Customarily, a parent or relative homeschooled children, although in New England a fledgling public school system was developing as was a strong private and higher education system. In most cases, social and family status determined how much education a child received. The three “Rs” were widely available, especially to whites and boys residing in the northern and middle colonies.⁵

The Reverend Francis Alison was in his mid-thirties when he took over the New London rectory. He had immigrated to America in 1743 after studying at Edinburgh University during the Scottish Enlightenment, when scholars such as David Hume, among the most brilliant in Europe, were at the height of their prominence. Well versed in Latin, Greek, and Hebrew, Alison was a serious-minded intellectual and counted among his friends Reverend Ezra Stiles, the president of Yale College. Rather than teach the elite and well connected, Alison hoped to prove that theology and science, combined with classical scholarship, could transform the raw wilderness of the New World into the base for a civilized, enlightened society. He wanted his young students to learn to think and to reason, and to become disciplined through study and careful observation. The school curriculum concentrated on Latin, English composition, and natural and moral philosophy. He also taught mathematics, which he applied to practical skills such as navigation and accounting.

The education that McKean received was based entirely on the European Enlightenment model—there was no American model. After all, McKean and the other boys were English subjects, and with 90 percent of the population living on farms there was little contact among citizens in the American colonies, and trade was largely conducted with the mother country and European capitals. There was no body of American scientific research, no American literature, and no American culture to speak of. Alison may have made the children aware of fast-growing cities such as Boston, New York, Baltimore, Charleston, and, of course, nearby Philadelphia. But these cities were dwarfed by London, capital of a faraway kingdom they could only imagine. The king of England must have seemed like some distant god.

Alison was a prolific writer, and his published essays provide insight into the philosophical perspective that he likely imparted to his students. One essay, “On the Rights of Supreme Power and the Methods of Acquiring It,” is particularly revealing. Alison declared, “A good subject should bear many private injuries rather than take arms against a prince, who was in the main good and useful to the state, but if an attempt is made against him for a precedent to hurt the community, the prince evidences his disregard for the public welfare and forfeits the power committed to him.” A decade later, Thomas McKean would use similar logic in opposing British rule.

Alison envisioned his students graduating to careers in ministry, education, and law. One student later recalled, “We were taught to speak and write correct English.” Every morning, Alison reviewed the students’ homework, or as another student put it, “we received the greatest advantage of his critical examination.” Although he provided his pupils with a rigorous education, he did little to nurture their emotional well-being, preferring instead the dictum of “spare the rod and spoil the child.” Charles Thomson, a classmate of the McKeans, recounted in a letter decades later that in his four years at the academy, he “never saw him [Alison] smile, nor in a good humor during that time.” Another student’s recollection of Dr. Alison was that he was “prone to anger.”⁶

The living conditions at the rectory were spartan. The boys’ lives were reduced to two rooms attached to the rectory. They slept on thin mattresses on wooden bed frames lined up one after another in one large room. They took classes and meals in a second room where a long wooden table and chairs stood. Alison led the boys in daily prayer, and they were expected to help with chores around the rectory.

Young Thomas seems to have had few boyhood pursuits beyond his studies, although by the time he was a teenager he had learned how to ride a horse and shoot a gun. Besides his brother Robert, McKean’s classmates included a number of boys who would later achieve prominence and, in one case, notoriety. Jacob Duche, like Robert, would become a clergyman and give the convocation at the first Continental Congress. Charles Thomson would become the secretary of the Continental Congress and sign the Declaration of Independence, and George Read, with whom McKean shared his early years at the academy, would sign the Declaration as well. The school was just for boys; the only females McKean encountered were the Reverend Alison’s young wife, Hannah Armitage, and her toddler half-sister, Sarah. Sarah was so much younger than Thomas that in all likelihood he paid her little attention, but they would cross paths again as adults.

After a decade at Dr. Alison’s academy, Thomas’s brother Robert, then eighteen, left for London to study medicine. It was the first time the older McKean boys had been separated, and Thomas must have felt as though he had lost his best friend.

A YEAR LATER, THOMAS MCKEAN COMPLETED HIS STUDIES WITH DR. ALISON and obtained a legal clerkship with his cousin David Finney, an attorney in New Castle, who was ten years older than he and whom he barely knew.

New Castle, the capital of the lower counties of Pennsylvania and located twenty miles from rural New London, was a bustling metropolis of a thousand or so residents. Built on the banks of the Delaware River, the city was a center for local commerce, mostly on the river, and boasted ocean trade with Britain, Europe, and the West Indies. Farmers from the countryside brought wagonloads of fresh produce to the market, and wealthy merchants and lawyers built stately brick residences set back from the cobblestoned streets.

One of the grandest residences in the city belonged to John Finney, David Finney’s uncle, who was among the largest landowners in the county and one of the richest men in Delaware. David also had substantial wealth and practiced law only because he enjoyed the intellectual stimulation. For Thomas, the Finneys’ lifestyle was unlike anything he had ever experienced. It was more than mere wealth: his cousins were educated, well respected, and formed a close-knit family. In contrast, although Thomas adored his brother Robert, he barely knew his younger siblings. He was ashamed of his father, who by this time had remarried and who contacted Thomas only when he needed help, usually to keep out of jail.

The practice of law was a fledgling profession in Delaware during the first half of the eighteenth century. There were no law schools, and lawyers were either self-taught or spent time apprenticed to more experienced, practicing lawyers. There were no law books, and courts did not retain trial records. As a result, there was no indigenous American law—only a body of law that was largely imitative of what English-trained lawyers had bequeathed to their colonial brethren. The Finneys had acquired a large law library, including leather-bound volumes imported from England that provided Thomas with access to some of the most important and widely read treatises of the era.

It was as good a start as could be had for a young lawyer in 1750.

DELAWARE’S SMALL POPULATION INHERENTLY LIMITED THE NUMBER OF legal transactions and cases; no more than a dozen formally trained trial lawyers served the lower counties. The majority of Delaware’s prominent lawyers lived in New Castle because, as one lawyer observed, “the county was poor,” populated by farmers who owned small properties in the countryside surrounding the city.⁷

David Finney did not know his younger cousin particularly well when the teenager arrived in New Castle, but he was happy to teach him everything he knew about the law. Finney was immediately struck by Thomas McKean’s acumen and work ethic. McKean would saddle his horse and follow the circuit judges from New Castle to Lewes and then to Dover, where they presided and heard cases. By listening and observing attentively, McKean became well versed in both the language and customs of the court. Finney had more work than he could handle and directed the overflow to his protégé. Soon, McKean began to develop his own clientele; his legal business ranged from the collection of debts to contesting wills to acting as the agent for the recovery of a runaway slave. But his bread-and-butter specialty was providing legal advice to the many Irish immigrants settling in the lower counties who were unfamiliar with the common law. After only a few months, McKean was arguing cases in court by himself.⁸

By the time he was twenty, Thomas McKean had a reputation as one of the hardest-working and most effective lawyers in New Castle. His nephew Thomas McKean Thompson later wrote that he was “remarkable for his industry and preciseness.” One story, perhaps apocryphal, recounted how he defended a local scalawag, a certain Mr. Buncom, who had slandered a neighbor. Represented by a prominent Philadelphia lawyer, Miers Fisher, the aggrieved neighbor filed a civil suit in neighboring Chester County. Fisher presented an ironclad case that Buncom had defamed his client. When it was McKean’s turn to present his defense, he called numerous witnesses who never disputed the slander but insisted one after the other that McKean’s client Buncom was a notorious liar. Because no one in the county believed a word that Buncom ever said, McKean argued, the plaintiff could not possibly have incurred any damages. The jury agreed, and Buncom was released with only a reprimand.⁹

In 1754, McKean, at only twenty years old, earned 400 pounds sterling, four times as much as the average lawyer and a staggering sum for someone of his age and experience. Later in his life he remembered that his rapid rise had elicited a great deal of envy “not only among the Juniors but also . . . some of the seniors of the profession.” Though technically still a legal apprentice, McKean believed he was capable of bigger things and decided to run for election as sheriff of New Castle. Candidates for public office in larger cities such as Philadelphia often campaigned personally, but in smaller communities like New Castle, they generally allowed others, usually friends, family, and like-minded supporters, to press their case for election. McKean, however, signaling his ambition, solicited votes through placing advertisements in the Pennsylvania Gazette, noting that he was doing so “pursuant to a practice in a neighboring province.” His brash self-promotion, advertising his ambition in the pages of the press as part of his campaign, did not win over the hearts of the voters of New Castle. Big-city political tactics lost him the election.¹⁰

Nonetheless this first foray into elective politics brought McKean to the attention of some of Pennsylvania’s top lawyers and political figures, including the attorney general John Ross, who also served as the chief law enforcement officer for the lower counties. Two years after McKean’s defeat, Ross named him a deputy prosecutor for the Crown, instructing him to “sign all indictments in and with my name.” At the time, no law barred a lawyer from serving as both a prosecutor and a defense attorney, except in the same case. The deputy prosecutor position not only was prestigious but also allowed Thomas to supplement his income from private practice.¹¹

WITH HIS REPUTATION GROWING, MCKEAN SET HIS SIGHTS ON A LARGER stage and expanded his practice to the courts of Philadelphia, including its supreme court. At the time, Philadelphia, the largest city in the colonies and the preeminent city in America, boasted a population of thirty thousand. The steeples of the statehouse and the Christ Church punctuated the city’s skyline. Its many shops offered the finest in European clothing—colorful hoopskirts from France and finely woven waistcoats and knee-length breeches from England. Import houses sold luxury items from London, such as silver and porcelain. Increasingly, local artisans, such as John Gillingham, began to produce mahogany furniture in the Chippendale style that rivaled the best in Europe. Elegant horse-drawn carriages paraded up and down wide, cobblestone streets lined with imposing red brick Georgian-style residences.

Reverend Andrew Burnaby, an Anglican clergyman from England who had traveled from Virginia to Massachusetts in 1759 and stopped over in Philadelphia on the way, vividly described the city in a travel log as “the object of everyone’s wonder and admiration.” Burnaby noted that “the streets are laid out in great regularity in parallel lines, intersected by others at right angles, and are handsomely built. On each side there is a pavement of broad stones for foot passengers, and in most of them a causeway in the middle for carriages.”¹²

The city had evolved into a vital center of foreign trade. Its merchants shipped a wide variety of goods to inland farms and towns. Burnaby recorded that “the city is in a very flourishing state” and “inhabited by merchants, artists, tradesmen and persons of all occupations.” He was greatly impressed by “the public market held twice a week, upon Wednesday and Saturday, and almost equal to that of Leadenhall” in London. Additionally, Philadelphia was a religiously diverse city with “eight or ten places of religious worship,” including “three Quaker meeting houses, two Presbyterian ditto, one Lutheran church, one Calvinist ditto, one Romish [Catholic] chapel, one Ana-baptist meeting house, one Moravian ditto.” The arts, education, and sciences all flourished in the “city of brotherly love”; several newspapers and magazines were in circulation; and America’s first hospital had been built there, which Burnaby described as tending to “lunatics and other sick persons.”¹³

Each of the thirteen colonies was separate and distinct, and Philadelphia was in many ways the most influential colonial city in terms of culture, economics, and politics; it offered numerous opportunities for an ambitious young lawyer like Thomas McKean. He enjoyed expanding his social network by spending evenings at one of the city’s nearly one hundred taverns. They were more than mere drinking establishments where patrons could drink beer and sip Madeira. They also served as meetinghouses where clubs and organizations gathered to carry out their business, gossip, and hatch schemes. In some, such as City Tavern, patrons could listen to classical music in one room, eat dinner in another, and debate politics or talk business over a whiskey in a third.

McKean’s visits to Philadelphia permitted him to spend time with a new friend, John Dickinson, a young lawyer who had first been introduced to McKean by his older brother, Robert. Robert McKean, pursuing his medical studies in London, met Dickinson, who was studying at Middle Temple at the Inns of Court. As two young students away from home, both of whom hailed from the middle colonies, they established an immediate connection. They discovered that, coincidentally, Reverend Francis Alison, prior to opening his academy, had tutored Dickinson as a young boy. Robert suggested that Dickinson meet his brother when he returned to Philadelphia.¹⁴

Thomas McKean and Dickinson formed an instant and lasting friendship. Thomas saw in Dickinson, as he did in David Finney, the kind of man he aspired to become. Dickinson, a Quaker, was a third-generation American. He had been born to wealth on his family’s tobacco plantation, Croisadore, in Talbot County, Maryland. His father was the first judge of the Court of Common Pleas in Delaware. Well educated and rich, Dickinson carried himself with an air of refinement and confidence. He was tall and thin with a long nose, taut smile, and bright blue eyes. But from the time he was boy, Dickinson was often dogged by illness and fatigue. When, years later, John Adams first met him at the Continental Congress, he described him as “a Shadow—tall, but slender as a Reed—pale as ashes. One would think at first sight that he could not live a month.”¹⁵

For his part, Dickinson admired Thomas’s earnestness, intellectual curiosity, and great energy. Soon after they met, Dickinson wrote Thomas that he hoped they would be “friends to each other throughout life.” In 1757, Dickinson recommended Thomas to the Inns at Court in London, considered a prestigious capstone of a legal education after a stint in a lawyer’s office. At the Middle Temple, as it was commonly known, the finest English lawyers studied to become barristers and solicitors, and each year a handful of Americans were admitted for matriculation. As Benjamin Chew, one of the most powerful lawyers in Pennsylvania and a future state supreme court justice, put it, the experience of studying in London offered “polish” as well as “the address and manner of speaking gracefully, and with proper elocution.”¹⁶

In anticipation of his travels abroad, McKean went so far as to purchase, at great expense, English law books, one of which he inscribed, prematurely, “Thomas McKean of the Middle Temple.” Though he would have undoubtedly benefited from studying English common law, he neither traveled to London nor explained why he passed up the opportunity. He was already making a substantial amount of money and may have decided that he didn’t want to forgo the economic opportunity. Or he may have found himself increasingly preoccupied with sorting out his father’s never-ending legal problems.

After the death of Thomas’s mother, William McKean had remarried but continued to prove himself a poor businessman. He gave up farming and opened a drinking establishment in the small town of Londongrove, but the townspeople complained that he “hath for some time past kept or permitted a very ill conduct and practice . . . in permitting or suffering people to swear, curse, fight, or to be drunk.” William wound up the defendant in several lawsuits involving property or contract disputes as well as actions filed by his creditors. Thomas loyally represented his father over a period of several years. However, he never wrote about William in letters or suggested that his support of his father stemmed from anything but a sense of filial duty. He seemingly considered his elder an embarrassment. When it came time for Thomas to name his own sons he would choose the names of his father-in-law, his brother, and himself—but not of his father.¹⁷

By the 1750s, whether defending his father or pressing the claim of a client, Thomas could be found most often in the courtrooms of the lower counties and Philadelphia pleading a case before a judge. He had developed a confident speaking style, and other lawyers marveled at his eloquence and ability to formulate a persuasive argument. Perhaps his greatest admirer was John Dickinson, who acknowledged that he didn’t like to work as hard as his more ambitious colleague. Dickinson once teased McKean that he needed to enjoy life more: “Moderation in everything is the source of happiness—too much writing—too much reading—too much idleness—too much loving—too much continence—too much law—physics or religion—all equally throw us from the balance of real pleasure.” Dickinson encouraged McKean to visit Philadelphia even more frequently, writing him in flowery prose typical of the day, “if you have as much pleasure in being with me, as I have in being with you, you will come up sooner than you mentioned.”¹⁸

In the fall of 1757, Benjamin Chew, then Speaker of the Delaware Assembly, appointed McKean clerk of the assembly, where the young lawyer acted as legal counsel for all of the legislation the legislature considered. This position not only added to McKean’s soaring reputation and to his thriving legal business but also introduced him to public service. When the assembly was in session, McKean heard the issues of the day deliberated and debated. He quickly learned that the citizens of the lower counties had very little real influence and that power resided in the Penn family and the English Parliament.

Four years after his first attempt to run for elective office, McKean was ready, as he put it, to cast himself once again “on the stormy seas of politics.”¹⁹ He didn’t campaign this time—there were no self-promoting ads in newspapers. He was by this point well known from both his legal and public activities, and he easily won election as a representative from New Castle, one of eleven lawyers in the eighteen-person assembly. He made the empowerment of the local judiciary his signature issue. As a practicing attorney, he had seen firsthand the disconnect between English law and its applicability to the local population. He argued that the Crown-appointed governor had too much authority over the implementation and interpretation of the colony’s laws.