Otis had been faithful, in this way, to the seventeenth-century sources of constitutional thought which he, like so many Americans, revered. Others — poorer scholars, perhaps, but better judges of the circumstances that surrounded them — were less faithful, and in the end more creative. The dominant view of the constitution in 1764 was still the traditional one, unencumbered by Otis’ complexities. While Otis was quoting Coke together with Vattel without grasping the implications of their conjunction, others were referring to constitutions as “a sort of fundamental laws”; as the common law; as Parliament; and as the whole complex of existing laws and public institutions.22 The transition to more advanced ground was forced forward by the continuing need, after 1764, to distinguish fundamentals from institutions and from the actions of government so that they might serve as limits and controls. Once its utility was perceived and demonstrated, this process of disengaging principles from institutions and from the positive actions of government and then of conceiving of them as fixed sets of rules and boundaries, went on swiftly.
In 1768 Samuel Adams, accustomed to drawing more extreme conclusions than most of his contemporaries, wrote in a series of letters in behalf of the Massachusetts House of Representatives that “the constitution is fixed; it is from thence that the supreme legislative as well as the supreme executive derives its authority,” and he incorporated the same language into the famous Massachusetts Circular Letter of that year. At the same time a Philadelphian, William Hicks, wrote that if one were to concede that statutes were “a part of [the] constitution” simply because they were once promulgated by government, one would have no basis for restraining the actions of any government. There is nothing sacrosanct, he wrote, in the “variant, inconsistent form of government which we have received at different periods of time”; they were accidental in origins, and their defects should be corrected by comparison with ideal models. In 1769 the emerging logic was carried further by Zubly, who flatly distinguished legislatures from the constitution, and declared that the existing Parliament “derives its authority and power from the constitution, and not the constitution from Parliament.” The constitution, he wrote, “is permanent and ever the same,” and Parliament “can no more make laws which are against the constitution or the unalterable privileges of British subjects than it can alter the constitution itself … The power of Parliament, and of every branch of it, has its bounds assigned by the constitution.”23
In 1770 the constitution was said to be “a line which marks out the enclosure”; in 1773 it was “the standing measure of the proceedings of government” of which rulers are “by no means to attempt an alteration … without public consent”; in 1774 it was a “model of government”; in 1775 it was “certain great first principles” on whose “certainty and permanency … the rights of both the ruler and the subjects depend; nor may they be altered or changed by ruler or people, but [only] by the whole collective body … nor may they be touched by the legislator.” Finally, in 1776 there came conclusive pronouncements. Two pamphlets of that year, brilliant sparks thrown off by the clash of Revolutionary politics in Pennsylvania, lit up the final steps of the path that led directly to the first constitutions of the American states. “A constitution and a form of government,” the author of Four Letters on Important Subjects wrote, “are frequently confounded together and spoken of as synonymous things, whereas they are not only different but are established for different purposes.” All nations have governments, “but few, or perhaps none, have truly a constitution.” The primary function of a constitution was to mark out the boundaries of governmental powers — hence in England, where there was no constitution, there were no limits (save for the effect of trial by jury) to what the legislature might do. In order to confine the ordinary actions of government, the constitution must be grounded in some fundamental source of authority, some “higher authority than the giving out temporary laws.” This special authority could be gained if the constitution were created by “an act of all,” and it would acquire permanence if it were embodied “in some written charter.” Defects, of course, might be discovered and would have to be repaired: there would have to be some procedure by which to alter the constitution without disturbing its controlling power as fundamental law. For this, the means “are easy”:
some article in the constitution may provide that at the expiration of every seven or any other number of years a provincial jury shall be elected to inquire if any inroads have been made in the constitution, and to have power to remove them; but not to make alterations, unless a clear majority of all the inhabitants shall so direct.
Thus created and thus secured, the constitution could effectively designate what “part of their liberty” the people are to sacrifice to the necessity of having government, by furnishing answers to “the two following questions: first, what shall the form of government be? And secondly, what shall be its power?” In addition, “it is the part of a constitution to fix the manner in which the officers of government shall be chosen, and determine the principal outlines of their power, their time of duration, manner of commissioning them, etc.” Finally, “all the great rights which man never mean, nor ever ought, to lose should be guaranteed, not granted, by the constitution, for at the forming a constitution, we ought to have in mind that whatever is left to be secured by law only may be altered by another law.”24
The same ideas, in some ways even more clearly worked out, appear in the second Pennsylvania pamphlet of 1776, The Genuine Principles of the Ancient Saxon or English Constitution, which was largely composed of excerpts from Obadiah Hulme’s An Historical Essay on the English Constitution, published in London in 1771, a book both determinative and representative of the historical understanding that lay behind the emerging American constitutionalism. Here too was stated the idea of a constitution as a “set of fundamental rules by which even the supreme power of the state shall be governed” and which the legislature is absolutely forbidden to alter. But in this pamphlet there are more explicit explanations of how such documents come into being and of their permanence and importance. They are to be formed “by a convention of the delegates of the people appointed for that express purpose,” the pamphlet states, and they are never to be “added to, diminished from, nor altered in any respect by any power besides the power which first framed [them].” They are to remain permanent, and so to have the most profound effect on the lives of people. “Men entrusted with the formation of civil constitutions should remember they are painting for eternity: that the smallest defect or redundancy in the system they frame may prove the destruction of millions.”25
Accompanying this shift in the understanding of constitutionalism, and part of it, was another change, which also began as a relocation of emphasis and ended as a contribution to the transforming radicalism of the Revolution. The rights that constitutions existed to protect were understood in the early years of the period, as we have seen, to be at once the inalienable, indefeasible rights inherent in all people by virtue of their humanity, and the concrete provisions of English law as expressed in statutes, charters, and court decisions; it was assumed that the “constitution” in its normal workings would specify and protect the inalienable rights of man. But what if it did not? What if this sense proved false, and it came to be believed that the force of government threatened rather than protected these rights? And what if, in addition, the protective machinery of rights — the constitution — came to be abstracted from the organs of government and to be seen not as an arrangement of institutions and enactments but as a blueprint for institutions, the ideal against which the actual was to be measured?
These questions were first posed early in the controversy, in the course of one of the most vituperative exchanges of constitutional views of the entire period. It is true, Judge Martin Howard, Jr., of Rhode Island wrote in response to Stephen Hopkins’ Rights of Colonies Examined (1765), that the common law carries within it and guarantees with special force the “indefeasible” personal rights of men; for
Britons it is the common law that makes these natural rights operative. But Parliament’s power is no less a part of that same common law. “Can we claim the common law as an inheritance, and at the same time be at liberty to adopt one part of it and reject the other?” If Parliament is rejected, so too must political and even personal rights. If rights are accepted as inextricable parts of laws and institutions, the laws and institutions must be accepted in all their normal workings.26
James Otis accepted the challenge. But in his stinging reply — a bitter, sarcastic, half-wild polemic — he again displayed a commitment to tradition that kept him from following through the logic of his own argument; again, he succeeded in dramatizing but not in resolving the issue. The judge’s “truly Filmerian” performance, he wrote, has “inaccuracies in abundance, declamation and false logic without end … and the most indelicate fustian.” His central error is that he “everywhere confounds the terms rights, liberties, and privileges, which, in legal as well as vulgar acceptation, denote very different ideas.” The source of this confusion, Otis said, was a misreading of Blackstone; from his Commentaries, Howard had mistakenly derived the idea that the rights of natural persons are the same as those of artificial persons: that is, “bodies politic and corporate.” Corporate rights are indeed “matters of the mere favor and grace of the donor or founder”; but that is not to say that the rights of natural people are too. Britons are entitled to their “natural absolute personal rights” by virtue of “the laws of God and nature, as well as by the common law and the constitution of their country so admirably built on the principles of the former.” Only such a one as Judge Howard, with his “Filmerian sneer,” who “cannot see any difference between power and right, between a blind, slavish submission and a loyal, generous, and rational obedience” — only such a person could fail to understand that the origin of “the inherent, indefeasible rights of the subject” lay in “the law of nature and its author. This law is the grand basis of the common law and of all other municipal laws that are worth a rush. True it is that every act of Parliament which names the colonies … binds them. But this is not so, strictly and properly speaking, by the common law as by the law of nature and by the constitution of a parliament or sovereign and supreme legislative in a state.”27
Otis had shifted the emphasis of discussion to the priority of abstract rights, but he had not attempted to follow through the implications of his own thought: he continued to assume that the actual law would express, and naturally protect, the universal rights of man. But if he did not draw the conclusions implicit in his own logic, others did: there is in the proliferating discussion of constitutionalism a steadily increasing emphasis on the universal, inherent, indefeasible qualities of rights. John Dickinson, also a lawyer — indeed, a more professionally trained lawyer than Otis — attacked in a more knowing and thorough way the idea that rights are matters of “favor and grace.” True, in 1764 he had vehemently defended the charter of Pennsylvania against the attacks of Joseph Galloway and others, but not because he believed that “the liberties of the subject were mere favors granted by charters from the crown.” The liberties of Pennsylvanians, he had proclaimed in a ringing oration in the Pennsylvania Assembly, are “founded on the acknowledged rights of human nature.” The value of a charter like that of Pennsylvania was that it stated the true character of such liberties beyond any misunderstanding, and freed them from the entanglements of those ancient, archaic customs “that our ancestors either had not moderation or leisure enough to untwist.” Two years later (1766) he elaborated the point significantly. Charters, he wrote in his Address to the Committee of Correspondence in Barbados, like all aspects of the law, are “declarations but not gifts of liberties.” Kings and Parliaments cannot give “the rights essential to happiness.”
We claim them from a higher source — from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They 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.
Written laws — even the great declarations like Magna Carta — do not create liberties; they “must be considered as only declaratory of our rights, and in affirmance of them.”28
Ultimately, the conclusion to be drawn became obvious: the entire legitimacy of positive law and legal rights must be understood to rest on the degree to which they conformed to the abstract universals of natural rights. Not all were willing, even in 1775, to go as far as Alexander Hamilton, who wrote in bold, arresting words that “the sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of divinity itself, and can never be erased or obscured by mortal power.” But if some found this statement too enthusiastic, few by 1774 — few even of the Tories — disagreed with the calmer formulation of the same idea, by Philip Livingston. Had he understood his antagonist, the Rev. Thomas Bradbury Chandler, correctly? Had Chandler really meant to say “that any right … if it be not confirmed by some statute law is not a legal right”? If so, Livingston declared, “in the name of America, I deny it.” Legal rights are “those rights which we are entitled to by the eternal laws of right reason”; they exist independent of positive law, and stand as the measure of its legitimacy.29
Neither Hamilton nor Livingston, nor any of the other writers who touched on the subject, meant to repudiate the heritage of English common and statutory law. Their claim was only that the source of rights be recognized, in Jefferson’s words, as “the laws of nature, and not as the gift of their chief magistrate,” and that as a consequence the ideal must be understood to exist before the real and to remain superior to it, controlling it and limiting it. But what was the ideal? What precisely were the ideal rights of man? They were, everyone knew, in some sense Life, Liberty, and Property. But in what sense? Must they not be specified? Must not the ideal now be reduced from a radiant presence and a conglomerate legal tradition to specific enumerated provisions? Must not the essential rights of man be specified and codified if they were to serve effectively as limits on the actions of courts and legislatures? In 1765 James Otis had fulminated at the mere suggestion that a document might profitably be drawn up stating the “rights of the colonies with precision and certainty.” Insolence, he had called it, pedantry and nonsense; Britons had no need for “codes, pandects, novels, decretals of popes.” “The common law is our birthright, and the rights and privileges confirmed and secured to us by the British constitution and by act of Parliament are our best inheritance.” But thought had shifted rapidly in the decade that followed, Arthur Lee exhorting his countrymen in 1768 to draw up a petition of rights “and never desist from the solicitation till it be confirmed into a bill of rights,” and Andrew Eliot a year later despairing of all solutions save that of “an American bill of rights.” No voice was raised in objection when in 1776 the idea was proclaimed, and acted upon, that “all the great rights … should be guaranteed” by the terms of a written constitution.30
These closely related changes — in the view of what a constitution was and of the proper emphasis in the understanding of rights — were momentous; they would shape the entire future development of American constitutional thought and practice. Yet they did not seem to be momentous at the time. They were not generally experienced as intrusive or threatening alterations. They were hardly seen as changes at all: they drifted into consciousness so gradually and easily and were accepted with so little controversy that writers would soon feel called upon to remind Americans that the fundamental principles of their political and constitutional thought were “of recent date, and for [them] the world is indebted to America; for if [the distinction between constitutional law and that of the ordinary legislature] did not originate in this country, it was here that it was first reduced to pra
ctice, exemplified, and its utility and practicability first established.”31 For in this area too, as in so many other developments in political and social thought, the way had been paved by the peculiar circumstances of colonial life. Whatever Otis may have thought of the issue when he came to consider it in theoretical terms, the fact was that written constitutions — documents not different essentially from the “codes, pandects, novels” he denounced — had existed, had been acted upon, had been assumed to be proper and necessary, for a century or more. Some, like the charter of the Massachusetts Bay Colony, had originated as commercial charters, concessions of powers by the crown to enterprisers willing to undertake the risks of exploration and settlement. These, in the colonial setting, had quickly changed in character, and “by some metamorphosis or feat of legerdemain had … become the frame of government for a state.” The Massachusetts Bay charter in particular “approximated a popular constitution,” Professor McIlwain has written, “more closely than any other instrument of government in actual use up to that time in America or elsewhere in modern times.” It is hardly surprising, he concludes, that the Fundamental Orders of Connecticut of 1639, “‘the first American constitution accepted by the people,’” should have been written by men who emigrated from Massachusetts.32
Later crown charters, like those of Connecticut and Rhode Island, were designed in the first place to be basic instruments of government; and if the seventeenth-century proprietary grants — those of New York, Maryland, and the Carolinas — were anachronistic in their feudal terminology, they too created “governing powers” and provided for public institutions that were expected to be “incapable of alteration or amendment except by concession from the grantor.” Most important of all, because most deliberately “constitutional” in character, were the foundations laid down by William Penn for the establishment of government in New Jersey and Pennsylvania. This remarkable man — courtier and sectarian; saint, schemer, and scholar — whose imaginative grasp of the possibilities of constitution-making led him eventually to propose not only a “Plan of Union for the Colonies” but also a scheme for “The Establishment of a European Diet, Parliament, or Estates,” devoted himself enthusiastically to constructing a proper framework of government for the Quaker colonies. In consultation with the leading political theorists of his time, he drew up and published a series of concessions, frames of government, and charters, which were, in effect, blueprints for “civil administration, elections, court procedure, the exercise of justice, fines, penalties, and … the duties and obligations of officeholders.” These schemes, again and again revised in an effort to adjust soaring idealism to the demands of ordinary human realities, could hardly have been more clearly fundamental, more manifestly constituent, in nature.33
The Ideological Origins of the American Revolution Page 24