No CrossRef data available.
Article contents
THE IDEA OF RIGHTS IN THE IMPERIAL CRISIS
Published online by Cambridge University Press: 17 July 2012
Abstract
This essay examines the idea of rights advanced by the American colonists in the imperial crisis (1763-1776). It argues that the colonists viewed all English subjects as having the same fundamental rights as individuals everywhere in the empire. These individual rights (to life, liberty, and property) were in turn guaranteed by the right to consent to taxation. In the empire, the colonists insisted, these rights could only be protected by the colonial legislatures as they were not represented in the British Parliament, which in turn meant that the colonies must have the ability to govern themselves in all internal matters, a claim which ultimately led to the idea of each colony as a “free state,” independent of King and Parliament. While the colonists began by defending these rights on the basis of their legal inheritance as Englishmen, they gradually moved towards a more radical claim: that these rights were theirs based on the law of nature, and thus open to all men in principle. This move to natural rights was based in part on the colonial claim that they had migrated to America, a place inhabited by indigenous peoples whom they viewed as “savages” and thus outside of the jurisdiction of the English common law. The radical move to natural rights, however, was in tension with the loose confederation which emerged in the years after 1776 in which each colony was now a quasi-independent republican state and in which the rights of minorities—Native Americans, African Americans, religious dissenters, and Loyalists—could not be effectively protected by the federal government.
- Type
- Research Article
- Information
- Social Philosophy and Policy , Volume 29 , Issue 2: Natural Rights Individualism and Progressivism in American Political Philosophy , July 2012 , pp. 82 - 103
- Copyright
- Copyright © Social Philosophy and Policy Foundation 2012
References
1 For example, Gordon Wood's influential argument that the revolution saw a transformation from a republican politics of virtue to a liberal politics of interests. See Wood, , The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969)Google Scholar. For one of the few exceptions, see Michael Zuckert's superb account of the idea of rights available to the colonists in Zuckert, Michael, Natural Rights and the New Republicanism (Princeton: Princeton University Press, 1994)Google Scholar. On the classical republicanism versus liberalism debate, see Rodgers, Daniel T., “Republicanism: The Career of a Concept,” Journal of American History 79 (1992): 11–38CrossRefGoogle Scholar.
2 For an overview of these debates, see Oakley, Francis's Natural Laws, Laws of Nature, Natural Rights: Continuity and Discontinuity in the History of Ideas (New York: Continuum Publishing, 2006)Google Scholar. James Hutson is one of the few Americanists who takes seriously these European debates, arguing that the Americans (though confused on some level about what rights meant) gradually adopted an individualistic or “subjective” understanding of the concept. See Hutson, , “The Emergence of a Modern Concept of a Right in America: The Contribution of Michael Villey,” in Shain, Barry, ed., The Nature of Rights at the American Founding and Beyond (Charlottesville: University of Virginia Press, 2007), 25–63Google Scholar.
3 For an argument about the centrality of duties, see Haakonssen, Knud, “From Natural Law to the Rights of Man: a European Perspective on American Debates,” in his Natural Law and Moral Philosophy: from Grotius to the Scottish Enlightenment (Cambridge: Cambridge University Press, 1996), 310–42CrossRefGoogle Scholar; as well as Barry Shain, “Rights Natural and Civil in the Declaration of Independence,” in Shain, ed., The Nature of Rights at the American Founding and Beyond, 116–62.
4 Rakove, , Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1999), 290Google Scholar.
5 For example Alan Gibson's sophisticated account of the historiography of the founding contains no index entry for the common law or English rights. See Gibson, , Understanding the Founding: The Crucial Questions (Lawrence: University Press of Kansas, 2007)Google Scholar. For the centrality of the common law to the American Revolution, see Greene, Jack P., The Constitutional Origins of the American Revolution (New York: Cambridge University Press, 2011)Google Scholar.
6 I am indebted to conversations with Barry Shain on the need to study a more representative sample of colonial opinion, including the official or state papers of the revolution.
7 On which, see Anderson, Fred's Crucible of War: The Seven Years' War and the Fate of Empire in British America, 1754–1766 (New York: Vintage Books, 2001), 557–651Google Scholar.
8 For details on the scope and the rates of tax, see Morgan, Edmund S., The Stamp Act Crisis: Prologue to Revolution (1953; Chapel Hill: University of North Carolina Press, 1995), 73–74Google Scholar.
9 Blackstone, William, Commentaries on the Laws of England, Vol. 1. Katz, Stanley N., ed. (1765; Chicago: University of Chicago Press, 1979), 156Google Scholar.
10 For an argument that the colonies always maintained an exclusive right to tax themselves, and thus were not, contrary to the claims of the Progressive historians in the early twentieth century, inconsistent or opportunistic in their opposition to British policy, first objecting only to internal taxes, and then external, see Morgan, Edmund S., “Colonial Ideas of Parliamentary Power, 1764–1766,” The William and Mary Quarterly, 5 (1948): 311–41CrossRefGoogle Scholar.
11 The New York Petition to the House of Commons, October 18th, 1764, in Morgan, Prologue to Revolution, 9–10.
12 Ibid., 10.
13 Ibid., 9, 11.
14 Ibid., 10. The New York assembly even claimed to prefer absolute monarchy to rule by Parliament on the grounds that it tended to treat its subjects more equally.
15 Ibid., 13–14.
16 Ibid., 14.
17 Ibid., 15.
18 Ibid., 16.
19 Ibid., 50–51.
20 Ibid., 51–52.
21 Ibid., 52–53.
22 Ibid., 58.
23 Ibid., 56–57.
24 Ibid., 66.
25 Ibid., 64–65.
26 Hopkins, Stephen, The Rights of the Colonies Examined (Providence, 1764), 9Google Scholar.
27 Ibid., 16.
28 Ibid., 4–5.
29 Ibid., 21.
30 Ibid., 10.
31 Ibid., 19–20.
32 Ibid., 22.
33 Bland, Richard, An Inquiry into the Rights of the British Colonies (Williamsburg: Alexander Purdie, & Co., 1766)Google Scholar.
34 Ibid., 12.
35 Ibid., 14.
36 Ibid., 10.
37 Ibid., 14.
38 Ibid., 20.
39 Ibid., 20–21.
40 Ibid., 16–17.
41 Ibid., 26.
42 The Declaratory Act (March 18th, 1766), in Greene, , ed., Colonies to Nation: A Documentary History of the American Revolution, 1763–1789 (New York: McGraw-Hill, 1967), 85Google Scholar.
43 On which, see Gipson, Lawrence H., The Coming of the Revolution, 1763–1775 (New York: Harper Brothers, 1954), 174–75Google Scholar.
44 See Dickerson, Olive M., The Navigation Acts and the American Revolution (Philadelphia, 1951)Google Scholar; and Barrow, Thomas C., Trade and Empire: The British Customs Service in Colonial America, 1660–1775 (Cambridge, MA: Harvard University Press, 1967)Google Scholar.
45 Munro, James and SirFizroy, Almeric, eds., Acts of the Privy Council Colonial Series. Volume V (1766–1783) (London: His Majesty's Stationery Office, 1912), 151–53Google Scholar.
46 In April 1768, following the Treaty of Stanwix, a new boundary was drawn, opening more land for settlement in the Ohio Valley than the Proclamation line decreed in 1763. This in turn facilitated the movement of troops into the colonial cities as the protests over the new Revenue Act gathered pace. See Alden, John, A History of the American Revolution (New York: Alfred A. Knopf, 1969), 93–94Google Scholar.
47 On these measures, see Middlekauff, Robert, The Glorious Cause: The American Revolution, 1763–1789 (1982; expanded edition, New York: Oxford University Press, 2005), 149–58Google Scholar. On the suspension of the New York legislature, see Varga, Nicholas, “The New York Restraining Act: Its Passage and Some Effects, 1766–1768,” New York History 37 (1956): 233–58Google Scholar.
48 For the nonimportation agreements adopted in Boston (in August, 1768, after earlier attempts had fallen through), and in Charleston (July, 1769), see Jensen, Merrill, ed., American Colonial Documents to 1776. Volume IX of Douglas, David, ed., English Historical Documents (London: Eyre & Spottiswoode, 1955), 724–26Google Scholar. By the end of 1769, every colony had adopted some form of nonimportation.
49 Jensen, ed., American Colonial Documents, 714–16.
50 Dickinson, , Letters from a Farmer in Pennsylvania, in McDonald, Forrest, ed., Empire and Nation (1962; Indianapolis: Liberty Fund, 1999)Google Scholar, Letter IV, Letter IX, Letter XI, passim.
51 Hicks, William, The Nature and Extent of Parliamentary Power Considered (John Holt: New York, 1768)Google Scholar.
52 Ibid., 25.
53 Ibid., 22.
54 Ibid., 23.
55 Ibid., 20.
56 Ibid., 25.
57 Dickerson, Oliver M., “Use Made of the Revenue from the Tax on Tea,” The New England Quarterly 31 (1958), 232–43CrossRefGoogle Scholar.
58 For the Coercive Acts, see Jensen, ed., American Colonial Documents, 779–85.
59 Wilson, James, Considerations on the Nature and Extent of the Legislative Authority of the British Parliament (Philadelphia, 1774), 2Google Scholar.
60 Ibid., 3.
61 Ibid., 3–4.
62 Jefferson, Thomas, Summary View of the Rights of British America (Williamsburg, 1774), 6Google Scholar.
63 Jefferson compared the migration to America with that of the Saxons to Britain. For the role that this historical understanding played in Jefferson's political thought, see Colbourn, H. Trevor, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (Chapel Hill: University of North Carolina Press, 1965), 158–84Google Scholar.
64 Jefferson, Summary View, 6.
65 Ibid., 7, 16.
66 Ibid., 19.
67 For a copy of the plan, see Boyd, Julian P., ed., Anglo-American Union: Joseph Galloway's Plans to Preserve the British Empire, 1774–1778 (Philadelphia: University of Pennsylvania Press, 1941), 112–14Google Scholar; and for a discussion of why it failed to win approval, see Ferling, Jon E., The Loyalist Mind: Joseph Galloway and the American Revolution (University Park: The Pennsylvania State University Press, 1977), 26–31Google Scholar.
68 On these debates, see York, Neil, “The First Continental Congress and the Problem of American Rights,” The Pennsylvania Magazine of History and Biography CXXII (1998): 353–83Google Scholar.
69 Jensen, ed., American Colonial Documents, 803–5.
70 Ibid., 803–5.
71 Ibid., 805–8.
72 Ibid., 805–8.
73 Novanglus; Or, A History of the Dispute with America, reprinted in Thompson, C. Bradley, ed., The Revolutionary Writings of John Adams (Indianapolis: Liberty Fund, 2000), 148–284Google Scholar. Adams' essays were written between January and April, 1775. The citations to Novanglus that follow refer to Thompson's edition. On Adams's political ideas, see Thompson, C. Bradley, John Adams and the Spirit of Liberty (Lawrence: University Press of Kansas, 1998)Google Scholar. See also, Muldoon, James, “Discovery, Grant, Charter, Conquest, or Purchase: John Adams on the Legal Basis for English Possession of North America,” in Tomlins, Christopher L., ed., The Many Legalities of Early America (Chapel Hill: The University of North Carolina Press, 2001), 25–46Google Scholar.
74 Novanglus, Letter VII, 221; Letter VIII, 237.
75 Ibid., Letter VII, 227.
76 Ibid., Letter XII, 278.
77 Ibid., Letter VIII, 238.
78 Jensen, ed., American Colonial Documents, 842–47.
79 Both the Olive Branch Petition and the King's proclamation are in Jensen, ed., American Colonial Documents, 847–51.
80 Ibid., 853.
81 For the argument that in the final years of the imperial crisis George III was “actively committed to a policy of coercion in America,” see O'Shaughnessy, Andrew Jackson, “‘If Others Will Not Be Active I Must Drive’: George III and the American Revolution,” Early American Studies I (2004): 9Google Scholar, and passim. On the “abrupt transformations in popular attitudes” to the king between 1774 and 1776, see Liddle, William D., “‘A Patriot King or None’: Lord Bolingbroke and the American Renunciation of George III,” The Journal of American History 65 (1979): 968CrossRefGoogle Scholar, and passim. On the attachment to monarchy in British America, see McConville, Brendan, The King's Three Faces: The Rise and Fall of Royal America, 1688–1776 (Chapel Hill: The University of North Carolina Press, 2006)Google Scholar.
82 Jensen, ed., American Colonial Documents, 854.
83 Ibid., 867–68.
84 “The Declaration of Independence,” in Kierner, Cynthia A., ed., Revolutionary America, 1750–1815: Source and Interpretation (New Jersey: Pearson Education, 2003), 137–39Google Scholar.
85 As Barry Shain argues in his essay on the idea of rights in the Declaration of Independence. See Shain, “Rights Natural and Civil in the Declaration of Independence,” in Shain, ed., The Nature of Rights at the American Founding and Beyond, 120 and passim.
86 As both Shain (see Ibid.) and David Armitage argue. See Armitage, , The Declaration of Independence: A Global History (Cambridge: Harvard University Press, 2007), 17Google Scholar. For a discussion of this question, see the contributions to the “Critical Forum: Armitage, David, The Declaration of Independence: A Global History,” William and Mary Quarterly 65 (2008): 347–69Google Scholar.
87 I develop this argument at greater length in Settlers, Liberty and Empire: The Roots of Early American Political Theory, 1675–1775 (New York: Cambridge University Press, 2011)Google Scholar, where I draw on a large body of recent scholarship which suggests that the revival of natural law thinking in early modern Europe was driven by the need to find transnational legal norms to justify European expansion into the New World. For examples of this large literature, see Tuck, Richard, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (New York: Oxford University Press, 1999)Google Scholar. On Grotius's imperial thought, see Keene, Edward, Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics (Cambridge: Cambridge University Press, 2002)CrossRefGoogle Scholar. On Locke and empire, see Arneil, Barbara, John Locke and America: The Defence of English Colonialism (Oxford: The Clarendon Press, 1996)CrossRefGoogle Scholar; Tully, James “Rediscovering America: The Two Treatises and Aboriginal Rights,” in Tully, , An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), 137–76CrossRefGoogle Scholar; “Aborginal Property and Western Theory: Recovering a Middle Ground,” Social Philosophy and Policy 11 (1994): 153–80CrossRefGoogle Scholar; and “Placing the ‘Two Treatises’,” in Phillipson, and Skinner, , eds., Political Discourse in Early Modern Britain (Cambridge: Cambridge University Press, 1993), 253–80CrossRefGoogle Scholar. For more recent work on Locke and empire, see Ivison, Duncan, “Locke, Liberalism and Empire,” in Anstey, Peter, ed., The Philosophy of John Locke: New Perspectives (London: Routledge, 2003), 86–105Google Scholar; and Armitage, David, “John Locke, Carolina, and the Two Treatises of Government,” Political Theory 32 (2004): 602–27CrossRefGoogle Scholar.
88 A claim made in Breen, T. H.'s Harmsworth lecture, The Lockean Moment: The Language of Rights on the Eve of the American Revolution (Oxford University Press, 2001), 12Google Scholar; as well as in Breen, 's “Ideology and Nationalism on the Eve of the American Revolution: Revisions Once More in Need of Revising,” The Journal of American History 84 (1997): 13–39CrossRefGoogle Scholar.
89 It is for this reason (among others) that I reject John Phillip Reid's account of the constitutional case for the colonists in which he denies that they were at all influenced by the idea of natural rights, even as he correctly notes that they made arguments based on what he calls the “migration purchase” argument. See Reid, , Constitutional History of the American Revolution, abr. ed. (Madison: University of Wisconsin Press, 1995)Google Scholar.
90 On which, see Pocock, J. G. A., The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (1957; revised edition: Cambridge: Cambridge University Press, 1987), 354CrossRefGoogle Scholar.
91 On the attempt by post-revolutionary American jurists to incorporate republican ideals of natural rights and equality into the common law, see Pearson, Ellen Holmes, “Revising Custom, Embracing Choice: Early American Legal Scholars and the Republicanization of the Common Law,” in Gould, Eliga H. and Onuf, Peter, eds., Empire and Nation: The American Revolution in the Atlantic World (Baltimore: The Johns Hopkins University Press, 2005), 93–111Google Scholar.
92 “The Declaration of Independence,” Kierner, 137–39.
93 On which, see Waldstreicher, David, Slavery's Constitution: From Revolution to Ratification (New York: Hill and Wang, 2009)Google Scholar.
94 For the limited nature of the First Amendment, see Hutson, James, Church and State in America: The First Two Centuries (New York: Cambridge University Press, 2008), 159Google Scholar.
95 A point made by the political theorist Levy, Jacob in “Federalism and the Old and New Liberalisms,” Social Philosophy and Policy 24 (2007): 306–26CrossRefGoogle Scholar.