so judiciously placed as to connect the force and to preserve the rights of all; each estate, armed with a power of self-defense against the encroachments of the other two, by being enabled to put a negative upon any or all of their resolves, neither the King, Lords, or Commons could be deprived of their rights or properties but by their own consent in Parliament and no laws could be made or taxes imposed but such as were necessary and in the judgment of the three estates in Parliament, for the common good and the interest of the realm.17
It was also agreed that the executive function was largely if not completely the proper responsibility of the first order of society, the crown. The rights exercised there were understood to be the rights of power: prerogative rights, privileges properly enjoyed by the monarch and his servants. But there the agreement stopped. There were several explanations of how the balance of social forces worked to check the undue exercise of prerogative power. Some writers found a sufficient balance and check in the fact that executive action was confined to bounds laid down by laws in the making of which all three powers had shared. But others were able to perceive a subtler kind of check upon prerogative power. For John Adams an essential point was that the commons, or the democracy, of society shared too in the execution of laws through the institution of trial by jury. This ancient device was critical, as Adams saw it, in establishing the equipoise of the English constitution in that it introduced into the “executive branch of the constitution … a mixture of popular power” and as a consequence “the subject is guarded in the execution of the laws.”18 Most writers, however, turned for explanation not so much to the popular recruitment of juries and hence to a social balance within the executive branch as to the pressure exerted against the executive from outside, by an independent judiciary. It was taken as a maxim by all, whether or not they used the point to explain how the executive branch entered into the separation of powers, that it was the function of the judges “to settle the contests between prerogative and liberty … to ascertain the bounds of sovereign power, and to determine the rights of the subject,” and that in order for them to perform this duty properly they must be “perfectly free from the influence of either.” The threat to this independence — liberty being passive and power active — came most commonly from prerogative because of the effect of “its natural weight and authority” working upon the almost universal “love of promotion and private advantage.” Unless the judiciary could stand upon its own firm and independent foundations — unless, that is, judges held their positions by a permanent tenure in no way dependent upon the will and pleasure of the executive — it would be ridiculous “to look for strict impartiality and a pure administration of justice, to expect that power should be confined within its legal limits, and right and justice done to the subject.”19
The difficulty of explaining how, precisely, the natural divisions of society expressed themselves in the English government so as to pit power against power for the mutual benefit of all was compounded when the unit involved was seen to be not the single community of Britain but an empire of communities each with its own separate social groupings and governmental institutions yet each part of a greater society and government as well. But until the Revolutionary crisis was well under way no one sought to settle this complicated constitutional problem.20 The colonists were content to celebrate the wonderful balance of forces they understood to exist in England, and to assume that in some effective way the same principles operated both in epitome within each colony and in the over-all world of the empire as well.
The result of this balanced counterpoise of social and governmental forces in the British constitution was the confinement of social and political powers to specified, limited spheres. So long as the crown, the nobility, and the democracy remained in their designated places in government and performed their designated political tasks, liberty would continue to be safe in England and its dominions. But if any of them reached beyond the set boundaries of their rightful jurisdictions; if, particularly, the agencies of power — the prerogative, administration — managed, by corrupt practices, to insinuate their will into the assembly of the commons and to manipulate it at pleasure, liberty would be endangered.
The very idea of liberty was bound up with the preservation of this balance of forces. For political liberty, as opposed to the theoretical liberty that existed in a state of nature, was traditionally known to be “a natural power of doing or not doing whatever we have a mind” so long as that doing was “consistent with the rules of virtue and the established laws of the society to which we belong”; it was “a power of acting agreeable to the laws which are made and enacted by the consent of the PEOPLE, and in no ways inconsistent with the natural rights of a single person, or the good of the society.” Liberty, that is, was the capacity to exercise “natural rights” within limits set not by the mere will or desire of men in power but by non-arbitrary law — law enacted by legislatures containing within them the proper balance of forces.21
But what were these all-important “natural rights”? They were defined in a significantly ambiguous way. They were understood to be at one and the same time the inalienable, indefeasible rights inherent in people as such, and the concrete specifications of English law. Rights, John Dickinson wrote,
are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice.
Such God-given, natural, inalienable rights, distilled from reason and justice through the social and governmental compacts, were expressed in the common law of England, in the statutory enactments of Parliament, and in the charters of privileges promulgated by the crown. The great corpus of common law decisions and the pronouncements of King and Commons were but expressions of “God and nature … The natural absolute personal rights of individuals are … the very basis of all municipal laws of any great value.” Indeed, “Magna Carta itself is in substance but a constrained declaration, or proclamation and promulgation in the name of King, Lords, and Commons of the sense the latter had of their original, inherent, indefeasible, natural rights.”22
But this relationship between human rights and English law — so simple sounding when expressed in casual phrases like Daniel Dulany’s “unalienable rights of the subject” — was in fact complicated even before the events of the 1760’s and seventies placed the whole issue under severe pressure. Even then the identification between the two was known to be necessarily incomplete, for the provision of English law did not and properly could not wholly exhaust the great treasury of human rights. No documentary specification ever could. Laws, grants, and charters merely stated the essentials (which everyone summarized, with minor variations in phrasing, as “personal security, personal liberty, and private property”) insofar, and only insofar, as they had come under attack in the course of English history. They marked out the minimum not the maximum boundaries of right. To claim more, to assert that all rights might be written into a comprehensive bill or code was surely, James Otis declared, “the insolence of a haughty and imperious minister … the flutter of a coxcomb, the pedantry of a quack, and the nonsense of a pettifogger.” The “strange gallimaufry” of “codes, pandects, novels, decretals of popes, and the inventions of the d——l” may be suitable for “the cold bleak regions [of] Brandenburg and Prussia or the scorching heats of Jamaica or Gambia” but not for Britain’s more temperate climate.23
Conceiving of liberty, then, as the exercise, within the boundaries of the law, of natural rights whose essences were minimally stated in English law and custom, the colonists saw in the balance of powers of the British constitution “a system of consummate wisdom” that provided an effective “check upon the power to oppress.”24 Yet they were far from optimistic about the future of liberty. They looked ahead with anxiety rather than with confidence, for they knew, from the whole of their received t
radition, of the desperate plight of liberty everywhere: “new tyrannies have sprung up, like so many new plagues, within the memory of man, and … [have] engrossed almost the whole earth,” rendering “the world a slaughterhouse.” Rulers of the East were “almost universally absolute tyrants … The states of Africa are scenes of tyranny, barbarity, confusion, and every form of violence. And even in Europe, where human nature and society are arrived at the highest improvements, where can we find a well constituted government or a well governed people?” France “has an arbitrary authority”; Prussia, “an absolute government”; Sweden and Denmark “have sold or betrayed their liberties”; Rome “groans under a medley of civil and ecclesiastical bondage”; Germany “is a hundred-headed hydra”; and Poland a ruin of “extravagant licentiousness and anarchy … the nobility and gentry arbitrary despotic tyrants, and the populace a race of slaves.” Only in Britain — and her colonies — had liberty emerged from its trials intact; only in Britain had the battle repeatedly been won. Yet even in Britain the margin of victory had been narrow, especially in the last, bitter struggle with would-be despots of the house of Stuart. And the dangers were known to persist.25
The historical phasing of the defense of liberty in England was a matter of great importance to the colonists not merely because it illustrated the characteristic dangers liberty faced but also because it made clear their own special role in history. “Liberty,” James Otis wrote in a sentence that reveals much of the structure of the colonists’ historical thought, “was better understood and more fully enjoyed by our ancestors before the coming in of the first Norman tyrants than ever after, till it was found necessary for the salvation of the kingdom to combat the arbitrary and wicked proceedings of the Stuarts.” The period before the Norman conquest was the greatest age of English history.
… it is a fact as certain as history can make it that the present civil constitution of England derives its original from those Saxons who … established a form of government in [England] similar to that they had been accustomed to live under in their native country … This government, like that from whence they came, was founded upon principles of the most perfect liberty. The conquered lands were divided among the individuals in proportion to the rank they held in the nation, and every freeman, that is, every freeholder, was a member of their Witan Moot or Parliament … or, which was the same thing in the eye of the constitution, every freeholder had a right to vote at the election of members of Parliament, and therefore might be said, with great propriety, to be present in that assembly either in his own person or by representation.
Political liberty, based upon a landholding system “the wisest and most perfect ever yet devised by the wit of man, as it stood before the eighth century,” had flourished in this ancient, prefeudal elysium. But then had come the conquest, and with it the imposition of feudal tyranny upon gothic liberty. “The spirit of the English nation, depressed and broken by the Norman conquest, for many years quietly gave way to the rage of despotism, and peaceably submitted to the most abject vassallage.” Not only had the King himself been rapacious and cruel, eagerly snatching at the liberties of the ancient, Saxon constitution, but the barons, “domineering and turbulent … capricious and inconstant … sometimes abetted the King in his projects of tyranny, and at other times excited the people to insurrections and tumults. For these reasons the constitution was ever fluctuating from one extreme to another. Now despotism, now anarchy prevailed.” Gradually, safeguards against such evils were built up — that great array of documents starting with Magna Carta that outlined the inner boundaries of English liberties — which remained effective until, in the seventeenth century, that “execrable race of the Stuarts” precipitated a “formidable, violent, and bloody” struggle between the people and the confederacy “of temporal and spiritual tyranny.” In the end liberty, as all the world knew, had been re-established in England, for the Glorious Revolution had created “that happy establishment which Great Britain has since enjoyed.” But it had been a close victory which would require the utmost vigilance to maintain.26
It had been at this critical juncture in the history of England and of liberty, when Englishmen had been forced to struggle with tyranny as they had not since the conquest, that America had been settled. The conjunction had not been accidental. “It was this great struggle that peopled America … a love of universal liberty, and a hatred, a dread, a horror, of the infernal confederacy [of temporal and spiritual tyranny] projected, conducted, and accomplished the settlement of America.” Just as their Saxon ancestors had left “their native wilds and woods in the north of Europe,” the settlers of America had emigrated to create in a new land civil and ecclesiastical governments purer, freer than those they had left behind. The transplantation had been made from an undefiled branch of the nation, strong, healthy, brimming with the juices of liberty, and it had been placed in a soil perfect for its growth. In the colonies, “sought and settled as an asylum for liberty, civil and religious,” virtue continued to be fortified by the simplicity of life and the lack of enervating luxury.27
This was not merely a parochial view. Though the idea that America was a purer and freer England came largely from local, nonconformist readings of history, it was reinforced by powerful elements within Enlightenment thought. European illuminati continued to identify America, as John Locke had done, with something approximating a benign state of nature and to think of the colonies as special preserves of virtue and liberty. They could not help but note the refreshing simplicity of life and the wholesome consequences of the spread of freehold tenure. Nor could they deny the argument of Trenchard that the colonies demonstrated the military effectiveness of militia armies whose members were themselves the beneficiaries of the constitution and hence not likely to wish to destroy it.28 No less a figure than Voltaire stated that America was the refinement of all that was good in England, writing in his Lettres philosophiques that Penn and the Quakers had actually brought into existence “that golden age of which men talk so much and which probably has never existed anywhere except in Pennsylvania.” At lower levels of sophistication too — in the propaganda turned out by promoters of emigration — the idea was broadcast that inhabitants of the colonies enjoyed a unique simplicity and rectitude in their social life and a special freedom in their politics.
Not all, of course, agreed. A contrary picture of the colonists as provincial rustics steadily degenerating in a barbarous environment distant from civilizing influences persisted.29 But on the eve of the Revolutionary controversy Americans, if not all Europeans and if not the crown officials who legally ruled them, could see themselves as peculiarly descended, and chosen for a special destiny. English successes in the Seven Years’ War made this seem particularly realistic, for it seemed reasonable, after the conquest of Canada, to envision, as Jonathan Mayhew did in 1759, “a mighty empire” in America “(I do not mean an independent one) in numbers little inferior perhaps to the greatest in Europe, and in felicity to none.” There would be “a great and flourishing kingdom in these parts of America,” with cities “rising on every hill … happy fields and villages … [and] religion professed and practiced throughout this spacious kingdom in far greater purity and perfection than since the times of the apostles.”30
It was at least possible. What would in fact happen in England and America would be the result, the colonists knew, of the degree of vigilance and the strength of purpose the people could exert. For they believed with Trenchard, with Bolingbroke, Hume, and Machiavelli — with the basic presupposition of eighteenth-century history and political theory — that “what happened yesterday will come to pass again, and the same causes will produce like effects in all ages,” the laws of nature, as James Otis explained, being “uniform and invariable.”31 The preservation of liberty would continue to be what it had been in the past, a bitter struggle with adversity; and if at the moment the prospects for success in that struggle seemed excellent in the colonies, they appeared to be considerably less than th
at in the home country. By 1763, before any of the major problems of Anglo-American relations had appeared, the belief was widespread in America that while liberty had been better preserved in England than elsewhere in the Old World, the immediate circumstances in the home country were far from conducive to the continued maintenance of liberty — that it was not unreasonable to believe, in fact, that a new crisis of liberty might be approaching. Writings popular in the colonies insisted that the environment of eighteenth-century England was, to a dangerous degree, hostile to liberty: that Jacobite remnants flourished, that effeminizing luxury and slothful negligence continued to soften the moral fiber of the nation, and that politics festered in corruption. Specifically, the colonists were told again and again that the prime requisite of constitutional liberty, an independent Parliament free from the influence of the crown’s prerogative, was being undermined by the successful efforts of the administration to manipulate Parliamentary elections to its advantage and to impose its will on members in Parliament.
The Ideological Origins of the American Revolution Page 11