By the Revolutionary period, the surviving charters, which in origins had been the instruments of the aggressive creation, or legitimation, of power, had become defensive bulwarks against the misuse of power. In Connecticut, Rhode Island, and Massachusetts they were cherished still, as they had been for a century and more, as special confirmations of “the ancient common law of England, and of the common rights of Englishmen.” In Pennsylvania, in the years immediately preceding the Stamp Act, the attack launched against the Penn family’s tax privileges, which had been written into the original charter, was fended off by impassioned pleas, like that of John Dickinson, to preserve intact, Proprietary tax privileges and all, the “laws and liberties framed and delivered down to us by our careful ancestors … Any body of men acting under a charter must surely tread on slippery ground when they take a step that may be deemed a surrender of that charter.” Nor were the benefits of these famous compacts “between the sovereign and the first patentees” valued only in the particular provinces in which they had survived. Everywhere in the colonies the existing charters were prized as “evidential of the rights and immunities belonging to all the King’s subjects in America.”34
For some people, in fact, the charters had acquired, in the course of the years, an additional, transcendent sanction. Those who viewed the world in the light of covenant theology could see the colonial charters as valid not merely in the eyes of the law but in the eyes of God as well: “our charter … was a solemn covenant between [the King] and our fathers” — a “sacred” covenant by which the crown had contracted with a morally regenerate people to maintain their “rights, liberties, and privileges … inviolably firm and free from the least innovations, in the same manner that King David stood engaged by the covenant of the people.” For “the covenant people of God” in particular, these charters, on the eve of the Revolution, were known to contain “the first great principles, or stamina, of their governments … prescribing the forms of their several governments, determining and bounding the power of the crown over them within proper limits, and ascertaining and securing their rights, jurisdictions, and liberties.”35
It took no wrench of mind, no daring leap, to accept, by then, the concept of a fixed, written constitution limiting the ordinary actions of government. Famous examples of the fact had long been present: the explicit idea, following, brought this experience into consciousness, gave it new meaning and propulsive power.
The same, though perhaps less obviously so, was true of the change in emphasis in the meaning of rights. The abstraction of rights from their embodiments in ancient, customary law, and their purposeful compilation and publication were not entirely new things for the colonists. Experience in such matters was buried deep in the colonial past; the process, and its results, had been familiar a century before it became systematically important in constitutional theory.
Denied the guidance of experts in the law, lacking sure ideas of what precisely the law provided and what rights were theirs, yet passionately devoted to the belief that English laws and English rights were theirs if they would but claim them, the first settlers in British America had found it necessary to compile the law they knew, enumerate its provisions, and specify some, at least, of the rights it guaranteed. The process could hardly have begun earlier than in fact it did. The Pilgrims, responding not to theory but to the practical needs of everyday life, drew up a code of law as early as 1636: “it contains,” a leading authority on the early history of American law has written, “a rudimentary bill of rights,” which, when elaborated and enlarged in the later years of the seventeenth century, became “a recognizably modern bill of rights.” The Puritans did the same, also within two decades of settlement. Their Laws and Liberties of 1648 was in design an abridgement of the laws they had themselves enacted; but, “the culmination of an extraordinarily creative period” of legal and constitutional thought, it went beyond restating and digesting the laws in force, to define “the just rights and privileges of every freeman.” It quickly became famous, and influential, in all the colonies. It proved to be
the fountainhead of Massachusetts law during most of the seventeenth century, and even thereafter, and its provisions were widely copied by other colonies, or used by them as models in framing their own laws. Through such intercolonial borrowing, its influence spread into other parts of New England, beyond to New York and even to Delaware and Pennsylvania.36
But the other colonies were not entirely dependent on New England models. Acting independently, in response to needs similar to those that had motivated the Massachusetts codifiers, they too drew up, on various occasions, their own formulations of rights. The ill-fated “Charter of Liberties and Privileges” passed by the first General Assembly of New York in 1683, contained not only “the outlines of a constitution for the province” but a “bill of rights” as well. Even more elaborate, and explicit, were the provisions of the “Rights and Privileges of the Majesty’s Subjects” enacted eight years later, in 1691, by the same body. This remarkable statute, objected to in England because of its “large and doubtful expressions” and disallowed there, listed the rights of the individuals in the form of a series of categorical prohibitions on government: the individual was to be free from unlawful arrest and imprisonment, arbitrary taxation, martial law and the support of standing armies in time of peace, feudal dues, and restrictions on freehold tenure; in addition, he was guaranteed due process of law, especially trial by jury, and, if Protestant, full liberty to “enjoy his or their opinion, persuasions, [and] judgments in matters of conscience and religion throughout all this province.”37
But, again, it was William Penn who saw farthest and accomplished the most. His “Laws, Concessions, and Agreements” for the province of West New Jersey, which he drafted probably in collaboration with Edward Byllynge and published in 1677, provided not only for the distribution of land and the organization of government but also, and in great detail, for “the common laws or fundamental rights and privileges” of the inhabitants. The central purpose of this remarkably enlightened document was, in fact, to state, so that they might be known and be preserved intact in the New World, “such liberties as were guaranteed by law for the good government of a people, in accord with, as near as conveniently might be, ‘the primitive, ancient, and fundamental laws of the people of England.’” Most explicit of all were Penn’s statements of rights and privileges in the provisions he made for his own province of Pennsylvania. In his original Concessions and in his Frames of Government, but even more in the so-called “Laws Agreed upon in England” and in the Charter of Liberties and the Charter of Privileges, he laid out, point by point, the rights, duties, and proper regulations of “every phase of human life, civil and social.”38
By no means all of these documents were bills of rights as we know them. Most of them were not thought of as defining rights antecedent to government and law, rights to which government and law must accommodate themselves. The most common assumption behind them was, rather, that these were rights that the law — English law if not colonial — already provided for and that were now being compiled simply to make them better known and more readily available for reference in a wilderness environment. Presumed to be neither “basic” in some special way nor logically comprehensive, they were mainly devoted to eliminating arbitrary procedures in the enactment and execution of laws. But some of them are nevertheless astonishingly modern, containing some of the precise prohibitions on governmental powers and some of the exact guarantees of individual action that would later come to be thought of as necessary parts of fully evolved bills of rights. The eighteenth century would add nothing to the declaration, in the “Concessions … or Fundamental Rights” of West New Jersey, that “no men nor number of men upon earth hath power or authority to rule over men’s conscience in religious matters”; nor would much improvement be made in the clause providing that no one “shall be deprived or condemned of life, limb, liberty, estate, [or] property … without a due trial and ju
dgment passed by twelve good and lawful men of his neighborhood.” And it is doubtful if James Madison, writing a full century later, would better the statements in New York’s Act Declaring What Are the Rights and Privileges guaranteeing “due course of law,” trial by jury, and freedom from the obligation to quarter troops in peacetime.39
All of these codes and declarations — whatever the deliberate assumptions of their authors, and however archaic or modern-sounding their provisions — were, at the very least, efforts to abstract from the deep entanglements of English law and custom certain essentials — obligations, rights, and prohibitions — by which liberty, as it was understood, might be preserved. As English law in America became better known in the eighteenth century through the work of an increasingly professional bar, and as governmental and judicial processes became stabilized in the colonies, the original need that had given rise to these documents faded. Except where they were embedded in, or protected by, crown charters, they tended to drop from prominence — but not from awareness. In some places surviving intact from the settlement period to the Revolution, well remembered in others where they had been eliminated from the statutes, and everywhere understood to be reasonable and beneficent, these documents formed a continuous tradition in colonial American life, and drifted naturally into the thought of the Revolutionary generation. So in 1774 Alexander Hamilton asserted, as a conclusive argument, that New York’s “very remarkable” Act of 1691 “confutes all that has been said concerning the novelty of our present claims, and proves that the injurious reflections on the [Continental] Congress for having risen in their demands are malicious and repugnant to truth.”40
3. SOVEREIGNTY
Representation and consent, constitution and rights — these were basic problems, consideration of which led to shifts in thought that helped shape the character of American radicalism. But of all the intellectual problems the colonists faced, one was absolutely crucial: in the last analysis it was over this issue that the Revolution was fought. On the pivotal question of sovereignty, which is the question of the nature and location of the ultimate power in the state, American thinkers attempted to depart sharply from one of the most firmly fixed points in eighteenth-century political thought; and though they failed to gain acceptance for their strange and awkward views, they succeeded nevertheless in opening this fundamental issue to critical discussion, preparing the way for a new departure in the organization of power.
The idea of sovereignty current in the English-speaking world of the 1760’s was scarcely more than a century old. It had first emerged during the English Civil War, in the early 1640’s, and had been established as a canon of Whig political thought in the Revolution of 1688. It was composed essentially of two elements. The first was the notion that there must reside somewhere in every political unit a single, undivided, final power, higher in legal authority than any other power, subject to no law, a law unto itself. Derived in part from the political theory of classical antiquity, in part from Roman law, and in part from medieval thought, this idea came to England most directly in the sixteenth-century writings, especially those of Jean Bodin, that sought to justify and fortify monarchial supremacy.
But in these early writings the concept of sovereignty still retained important limitations derived from its legal, religious, and pre-national origins. By sovereign Bodin had meant supreme, but not arbitrary: not without restrictions or controls, that is; the action of the sovereign state, he assumed, must still “embody the law of nature and of God.” Bodin’s theory, Professor McIlwain writes, for all its efforts to establish a power beyond appeal, “is a theory of law not of might, the theory of the Rechtsstaat; and it is this theory which … for two generations after Bodin dominated even English thought.” But then, in the mid-seventeenth-century crisis in England, a change came. In the desperate necessity to isolate a reliable source of order, the permeation of might with right ended; a generation of cold-eyed analysts stripped the idea of sovereignty of its moral and legalistic qualities and laid bare the doctrine of naked force. Hobbes and Filmer are the names most obviously associated with this change in English thought; but it was not their work alone. The familiar restrictions had been attacked and undermined, if not eliminated, by earlier defenders of the royal prerogative — Roger Mainwaring and Robert Sibthorpe (whom the colonists would frequently denounce as pre-eminent absolutists), Francis Bacon, and James I himself. Yet it was, nevertheless, Hobbes who, in a series of writings in the mid-seventeenth century, first went beyond the immediate claims of monarchy to argue systematically that the only essential quality of sovereignty as such — whoever or whatever its possessor might be — was the capacity to compel obedience; and it was with his name, and with Filmer’s, that the colonists came to associate the conception of the Machtstaat in its most blatant form.41
Final, unqualified, indivisible power was, however, only one part of the notion of sovereignty as it was understood by Englishmen on the eve of the American Revolution. The other concerns its location. Who, or what body, was to hold such powers? For the absolutists of James I’s time, as later for Filmer, the answer was, of course, the crown. But others who also believed with Hobbes that “the preservation of life itself depended essentially upon power and not upon law” feared that an absolutely unfettered King would become an absolute despot — precisely the sort of ruler that Charles I had sought to become. In the extraordinary outburst of political theorizing that took place in 1642 when the final break with the crown was made, a new conclusion was drawn from the argument that there must necessarily be “an arbitrary power in every state somewhere.” If this power fell to “one man or to a few there may be danger in it, but the Parliament is neither one nor few,” and as a result “no inconvenience” would follow from placing arbitrary power in Parliament’s hands. Parliament is “so equally and geometrically proportionable” in its composition, “and all the [e]states do so orderly contribute their due parts therein” that its absolute, arbitrary power “is not dangerous nor need to be restrained.”42
The words are those of Henry Parker, taken from the pamphlet of 1642 in which he “worked out for the first time in English history a theory of Parliamentary sovereignty.” He, and others with him, developed the idea further under the pressure of attacks that came, on the one hand from extreme Royalists, now defenders of fundamental law as a necessary qualification on sovereignty, and on the other from extreme libertarians, determined to protect the individual against government in any form. Parker’s view survived and flourished, and the result, by the Restoration, was a conception of Parliament that would have been inconceivable a generation earlier: a body absolute and arbitrary in its sovereignty; the creator and interpreter, not the subject, of law; the superior and master of all other rights and powers within the state. It was this conception of Parliamentary sovereignty that triumphed in the Glorious Revolution; and it was this conception, justified in the end by the theory of an ultimate supremacy of the people — a supremacy, that is, normally dormant and exercised only at moments of rebellion against tyrannical government — that was carried on into the eighteenth century and into the debates that preceded the American Revolution.43
It had been a gradual development, and it had ended in a significant inversion. The earliest tradition, Professor McIlwain writes in one of his most striking essays, had been that of Hooker and Coke, Eliot and Hale, who
would have repudiated all arbitrary government whatsoever, whether by king or parliament; Filmer had declared that any government in England must be both arbitrary and royal; for Hobbes it must be arbitrary but not necessarily royal; for many Whigs a century later it must be arbitrary and cannot be royal. Thus after 1689, and the revolution settlement which marked the final triumph of the Whigs, the arbitrary power of Hobbes and Filmer was for the first time “engrafted into the English constitution” … and vested in the national assembly … For the Whigs the only real sovereign must be the Parliament, that is all.
By the mid-eighteenth century t
his Whig conception of a sovereign Parliament had hardened into orthodoxy. In the year of the Stamp Act, it was given its classic formulation by Blackstone, who wrote in his Commentaries that “there is and must be in all [forms of government] a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside,” and that in England this “sovereignty of the British constitution” was lodged in Parliament, the aggregate body of King, Lords, and Commons, whose actions “no power on earth can undo.”44
The Ideological Origins of the American Revolution Page 25