All persons born in the British American Colonies are, by
the laws of God and nature and by the common la of England, exclusive
of all charters from the Crown, well entitled, and by acts of
the British Parliament are declared to be entitled, to all the
natural, essential, inherent, and inseparable rights, liberties,
and privileges of subjects born in Great Britain or within the
realm. -- Samuel Adams, The
Rights of the Colonists: The Report of the Committee of Correspondence
to the Boston Town Meeting, Nov. 20, 1772.
For the rights of the people, which is the supreme glory
of the crown and the kingdom of Britain, is the Magna Charta of
the king as well as of the people; it is as much his previledge,
as it is his glory, to maintain their rights; and he is as much
under a law (I mean the law of the rights of the people), as the
people are under the oath of allegiance to him. . . .And therefore
whatever power destroys their rights, destroys at the same time,
his right to reign, or any right to his kingdom, crown, or glory;
nay, his right to the name of a king among the people. . . .Shall
a man be deem'd a rebel that supports his own rights?-- Excerpts
from a sermon, "ORATION, upon the Beauties of LIBERTY, OR
the Essential RIGHTS of the AMERICANS" preached to the Second
Baptist Church in Boston Dec. 3, 1772 by John Allen.
That His Majesty's liege subjects in these colonies are entitled
to all the inherent rights and privileges of his natural born
subjects within the kingdom of Great Britain. --
Resolution #2 of The Declaration of Rights of the Stamp Act Congress,
October 19, 1765
Americans as Englishmen
Why would Americans attempt to break away from England
by insisting they were "Englishmen?" There
are several answers that immediately come to mind. First, that
is exactly how Americans thought of themselves through most of
the colonial period -- as "Englishmen." Second, Americans
did not generally begin their long debate with England over rights
with the desire to obtain political independence. Had England
acknowledged their claims to constitutional protections, American
dissatisfaction with their treatment may never have ripened into
revolution. While this argument continued to be used in patriot
rhetoric right up until the moment of the break with England,
it naturally lost force in the last days of the debate as Americans
focused less on their identity as England and began to insist
on their rights and power as a distinct and independent people.
When Americans claimed that they were Englishmen, they often
supported their argument by pointing to the charters given to
the first settlers that were intended to define their rights and
responsibilities. The
First Virginia Charter, signed by King James in 1606, stated
clearly:
wee doe, for us, our heires and successors, declare by theise
presentes that all and everie the parsons being our subjects
which shall dwell and inhabit within everie or anie of the saide
severall Colonies and plantacions and everie of theire children
which shall happen to be borne within the limitts and precincts
of the said severall Colonies and plantacions shall have and
enjoy all liberties, franchises and immunites within anie of
our other dominions to all intents and purposes as if they had
been abiding and borne within this our realme of Englande or
anie other of our saide dominions.
Similarly, the "Charter
of Massachusetts Bay" issued by the king in 1629 proclaimed:
Wee doe hereby for Us, our Heires and Successors, ordeyne and
declare, and graunte to the saide Governor and Company and their
Successors, That all and every the Subjects of Us, our Heires
or Successors, which shall goe to and inhabite within the saide
Landes and Premisses hereby mentioned to be graunted, and every
of their Children which shall happen to be borne there, or on
the Seas in goeing thither, or retorning from thence, shall
have and enjoy all liberties and Immunities of free and naturall
Subjects within any of the Domynions of Us, our Heires or Successors,
to all Intents, Constructions, and Purposes whatsoever, as if
they and everie of them were borne within the Realme of England.
[Italics mine. Note: see The Avalon Project for the complete
text.]
Given this language, it is not surprising that colonists insisted
that they deserved to be treated as Englishmen.
The English Constitution
Looking back, we may wonder why Americans wanted to enjoy the
"rights" belonging to the British subjects of a king.
Yet, like their British counterparts, Americans did not think
of themselves as living under a monarchical government. Instead,
both the British and the colonists celebrated the English constitution
as the central element of English political life. Of course, the
frequent allusions to the the English constitution made by those
on both sides of the debate over American rights may seem perplexing
because England has never had a written constitution. The term,
however, is generrally used to refer to the set of rights and
privileges set forth in such documents as the 1215 Magna
Carta (also known as "'The Great Charter of the Liberties
of England"), the 1628 Petition
of Right, and the 1689 English
Bill of Rights, along with the rights defined by common law.
This series of agreements won over th course of centuries by English
proponents of rights had gradually limited the powers of the throne.
Together, these achievements gradually transformed the narrowly
monarchical government of the middle ages into a system in which
pwer was distributed among the monarchy, legislature, and courts
that characterized English government in the period just before
the revolution. Thus, rather than seeing monarchies and republics
as two mutually exclusive forms of government, by the late eighteenth
century the English were able to boast that they enjoyed the best
of both models and Americans expressed their outrage at being
deprived of their rights as "Englishmen."
Here is an example of how that argument was used by Patrick Henry
when drafting the The
Virginia Stamp Act Resolutions of 1765
Resolved, that the first adventurers and settlers of His Majesty's
colony and dominion of Virginia brought with them and transmitted
to their posterity, and all other His Majesty's subjects since
inhabiting in this His Majesty's said colony, all the liberties,
privileges, franchises, and immunities that have at any time
been held, enjoyed, and possessed by the people of Great Britain.
Resolved, that by two royal charters, granted by King James
I, the colonists aforesaid are declared entitled to all liberties,
privileges, and immunities of denizens and natural subjects
to all intents and purposes as if they had been abiding and
born within the Realm of England.
Resolved, that the taxation of the people by themselves, or
by persons chosen by themselves to represent them, who can only
know what taxes the people are able to bear, or the easiest
method of raising them, and must themselves be affected by every
tax laid on the people, is the only security against a burdensome
taxation, and the distinguishing characteristic of British freedom,
without which the ancient constitution cannot exist.
Americans often represented their own fight as another stage
in this long English tradition of working to expand rights and
Americans sometimes The long struggle that had led to the existence
of those rights often voiced their admiration for those individuals
who had won such battles before them. One such "hero"
was Sir Coke,
known for his liberal interpretation of common law. Unlike those
laws written and voted on by a legislature and then kept up to
date in the legal codes, the "common law" is based on
long agreed-upon understandings of right practice as interpreted
by judges. In his 1713 History
of the Common Law, Matthew Hale described it as:
Those parts of the law . . . not set down in Writing in that
Manner, or with that
Authority that Acts of Parliament are, but [instead] are grown
into
Use, and have acquired their binding Power and the Force of
Laws
by a long and immemorial Usage, and by the Strength of Custom
and
Reception in this Kingdom. The Matters indeed, and the Substance
of those Laws, are in Writing, but the formal and obliging Force
and Power of them grows by long Custom and Use.
Coke wrote in The First Part of the Institutes
of the Laws of England: "if it be the generall custome
of the realme, it is part of the common law itself is nothing
else but reason, gotten by long study, observation, and experience.
. . . " Although this statement would seem to suggest that
Coke regarded common law as a simple matter, he used it as a powerful
weapon in his effort to limit the authority of the king. When
James I had succeeded Queen Elizabeth to the throne, his Catholic
sympathies prompted a debate over whether rex (the king) or lexe
(the law) should govern England. James I, of course, was determined
to uphold the rights of kings. One opportunity to do this arrived
when James found himself impatient with the way a case was proceeding
in the courts and decided to judge the case himself. In The
Lion and the Throne: The Life of Edward Coke, Catherine Drinker
Bowen tells the rest of the story this way. Coke interrupted the
King's plan, insisting
"that neither by the Great Seal nor by the
Little Seal, justice shall be delayed; ergo the King cannot
take any cause out of any courts and give judgment upon it himself…."
James broke in, told Coke he "spoke foolishly." Himself,
the King, as supreme head of justice, would defend to the death
his prerogative of calling judges before him to decide disputes
of jurisdiction. Moreover, he would "ever protect the common
law."
"The common law," Coke interjected, "protecteth
the King."
"A traitorous speech!" James shouted. "The King
protecteth the law, and not the law the King! The King maketh
judges and bishops. If the judges interpret the laws themselves,
and suffer none else to interpret, they may easily make, of
the laws, shipmen's hose!"
Another example of Coke's bold use of the law is
The Petition
of Right that he helped to frame in 1628 to remind the King
that he no longer enjoyed the right to tax, require subjects to
make loans, throw people off the land, throw them in prison, or
execute them without the support of nobility, the men of the church,
and Parliament. And yes, Coke does mention both the Magna Carta
and the Petition of Right. In fact, in the debate leading up to
the vote on whether to submit the Petition of Right, Coke proclaimed:
"Magna Charta is such a fellow, that he will have no sovereign."
This choice of words is particularly bold, considering that "sovereign"
typically appeared in political and legal documents as a reference
to the king.
Some of Coke's contemporaries as well as later scholars
have suggested that Coke interpreted the common law so liberally
in the interests of his politics that he "fictionalized"
the law. The founders of American independence, however, regarded
h im in heroic terms. Jefferson and other revolutionary leaders
would have studied Coke's legal commentaries as part of their
education as lawyers, and drew upon his ideas in their thinking.
When later asked by a young friend for suggestions
about books to read for his legal education, Jefferson included
Coke in his recommendations. Today, the scene in which Coke faced
off against James I is commemorated on one of the panels of the
front doors of the Supreme Court, along with a picture of King
John being forced by the Barons to place his seal upon the Magna
Carta and other depictions of historic events regarded as having
made a contribution to the American understanding of rights.
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Top left is a picture of Sir Coke; on the right is a picture
of the doors of the United States Supreme Court Building.
For an explanation of the pictures on the doors, open this
pdf file. For a description
of the symbolism of the architecture and decorations of
the Supreme Court, see "The
Court Building" For a virtual tour of the architecture
of the capital and an explanation of its symbolism, see
the University of Virginia's
Capital Project.
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Anyone who doubts that this argument based on the idea of English
rights was a major weapon in revolutionary-era rhetoric should
"follow the money." In Massachusetts, the colonists
designed an official seal for use on their currency that insisted
that Americans were English and deserved their constitutional
rights. In the final and most heated days of debate between the
Americans and the British government, the committee appointed
by the Massachusetts Provincial Congress to recommend a design
for an official seal decided to emphasize the importance of the
colony's original charter rights by resuming the use of a seal
similar to the one used under the first charter. However, the
record shows that when the full council met to vote on the recommendation,
a change was made.
In Council, August 5, 1775.
Read and accepted with this Amendment, viz. Instead
of an Indian holding a Tomahawk and Cap of Liberty, there be
an English American, holding a Sword in the Right Hand, and
Magna Charta in the Left Hand, with the words "Magna
Charta," imprinted on it.
In the images below, you can see the results of the council's
proposal.
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The
graphic to the left shows the original seal of the colony
of Massachusetts. The words shown issuing from the mouth of
the Native American are "Come over and Help Us,"
which were intended to remind viewers of the importance of
the Massachusetts settlement as a missionary enterprise. The
slogan is taken directly from Acts 16:9: "And a vision
appeared to Paul in the night; There stood a man of Macedonia,
and prayed him, saying, Come over into Macedonia, and help
us." Verse 10 goes on to explain: And after he had seen
the vision, immediately we endeavoured to go into Macedonia,
assuredly gathering that the Lord had called us for to preach
the gospel unto them." |
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The seal was revised
in 1775 when the Indian was replaced by a soldier, holding
a sword and carrying a document labeled as the Magna Carta.
This image is still prominently displayed today on a window
of the Massachusetts State House in Boston. The Latin motto
is a quotation from Algernon
Sidney, famous as a proponent of "natural rights."
(For more on Sidney and the patriots' use of the Natural Law
argument, see: Natural Law Guarantees
All Human Beings Fundamental Rights.) ""Ense
petit placidam sub libertate quietem" is translated
by the State Office of Public Records as "By the sword
we seek peace, but peace only under liberty." For more
information on the seals see The
History of the Arms and Great Seal of the Commonwealth of
Massachusetts provided by the Department of Public Records. |
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The 1775 seal (shown
on the left as it was reproduced in a 19th century book) was
used on several issues of currency in colonial Massachusetts.
To see examples of the currency and read more about these
images, see:
Coin and Currency Collections in the Department of Special
Collections, University of Notre Dame Libraries. The page
on the Currency
of Massachusetts offers several examples of the "Sword
in Hand" bills. For an excellent discussion of the seals,
see Thomas C. Amory's "Seals of Massachusetts,"
published in the December, 1867 issue of the Proceedings
of the Massachusetts Historical Society. |
This is one case in which you can say "the money talks,"
because every piece of the "Sword in Hand Script" reiterated
the patriots' insistence that they deserved the protections of
the British Constitution.
Note: For a fascinating and thought provoking exhibit that may
prompt you to consider the connections between the Revolution
and the Civil War, see Beyond
Face Value: Depictions of Slavery in Confederate Currency,
a project of the U.S. Civil
War Center at Louisiana State University. To investigate this
subject further, you can visit The
American Currency Exhibit hosted by The Federal Reserve Bank
of San Francisco.
The Tory Response
Most arguments are reversible and can be used not only to promote
an argument, but also to defeat it. The argument based on the
idea that Americans deserved the protections of the English constitution
is no exception.
Just as American patriot writers and speakers praised the virtues
of a balanced government in which the gingival was guaranteed
rights under the constitution, so Tories consistently pointed
out that such a government could only be successful when balance
was achieved. If the rights and desires of the people were the
primary consideration, they argued, then "licentiousness"
would prevail. The specter of mob rule haunted the thinking and
writing of those who supported the government.
American loyalists and English writers often emphasized the connection
between "rights" and "responsibilities," noting
in particular the unwillingness of the colonists to pay their
taxes.While Americans insisted that the taxes had been created
by a legislature in which they were not represented, the colonists
were quickly reminded that the British system did not promise
direct representation in which each freeman was able to vote for
and provide instructions to a specific member of parliament.
In this point they were generally correct, of course. Americans
had evolved a distinctly different understanding of representation
because some of the same charters that had guaranteed the colonists
and their heirs would continue to be regarded as English also
allowed the settlers to develop some of their own laws and governmental
systems. By the period just before the revolution, most Americans
were accustomed to participatory democracy, in which they had
direct input into governmental decisions through town meetings,
votes, and personal consultations with their representatives.
Recognizing tha the experience of direct democracy had contributed
to the colonists' impatience with British Government, Parliament
attempted to restrict American rights. One of the infamous Coercive
Acts, The
Massachusetts Government Act of 1774 specified that
the said method of annually electing the counselors or assistants
of the said province should no longer be suffered to continue,
but that the appointment of the said counselors or assistants
should henceforth be put upon the like footing as it is established
in such other of his majesty's colonies or plantations in America
. . . Be it therefore enacted that . . . so much of the charter
. . . which relates to the time and manner of electing the counselors
for the said province, be revoked . . . .
By that point, The Massachusetts Government Act and other similar
attempts to rein in American rights only served further to inflame
the Americans' sense of unjust treatment.
Tory writers also often argued that Americans were no longer
entitled to be regarded as Englishmen because they had voluntarily
left their homeland and forsaken its privileges. In fact, this
argument was consistent with the patriots' claims that their forefathers
had fled England to seek independence.
The Evolution of the Argument Over the Course of the American
Conversation
The patriots insisted that they deserved the protections of the
British constitution right up to the point at which they formally
broke with England,. However, as it became clear that those rights
(as they were interpreted by the patriots) would never be granted,
this argument was gradually eclipsed by statements insisting on
the existence of a separate and powerful American identity. The
argument that Americans were a distinctive people with a great
destiny became part of the rhetoric of the revolutionary era,
but even when this argument was used in words ostensibly directed
at an English audience it was always also intended to unite and
inspire the Americans as they faced the inevitability of war.
We can already see this shift in arguments coming in 1772 when
Samuel Adams, contributing to The Report of the Committee of Correspondence
to the Boston Town Meeting, November, 20, 1772, insisted:
Now what liberty can there e were property is taken away without
consent? Can it be said with any color of truth and justice,
that this continent of three thousand miles in length, and of
a breadth as yet unexplored, in which, however it is supposed
there are five millions of people, has the least vote, or influence
in the British Parliament? . . . The inhabitants of this country,
in all probability, in a few years, will be more numerous than
those of Great Britain and Ireland together; yet it is absurdly
expected by the promoters of the present measures that these,
with their posterity to all generations, should be easy, wile
their property shall be disposed of by a House of Commons at
three thousand miles' distance from them, and who cannot be
supposed to have the least care or concern for their real interest
. . . .
As Adams moves from criticism of the lack of representation to
an insistence on the inevitable emergence of American superiority,
you can hear the direction that the American conversation would
take in the years of the revolution.
Key Terms
If you see any of the following references or terms in a text
from the revolutionary era, consider whether the author is using
this argument: Englishmen, freemen, rights, Magna
Carta (or Magna Charta), constitution,
Sir Coke.
Recommended Resources:
"Magna
Carta and Its American Legacy," an exhibit at the National
Archives and Records Administration
The
American Constitution: A Documentary Record at the Avalon
Project of Yale Law School allows you to construct your own
understanding of the sources and evolution of the political thinking
that is given expression after the revolution in the American
Constitution. The list begins with The Magna Carta.
Sir
Edward Coke, Lord Of The Law, a digitized version of a 1957
article on Coke written by his biographer, Catherine Drinker Bowen,
and published in American Heritage magazine.
"Sir
Edward Coke and the Common Law," by Timothy Sandefur
is intended as a review of Jim Powell's book on The Triumph
of Liberty and yet offers Sandefur's own pithy analysis of
Coke's career and significance.
"Natural
Law and the American Tradition," by Davis E. Keeler,
offers a concise explanation of the roles played by Coke and Blackstone
in defining common law.
A Footnote
to the Political Theory of John Adams Vindiciae Contra Tyrannos,
by Prof. Stanley Bamberg. This essay provides a thoughtful analysis
of the sources that influenced John Adams' rhetoric, and the way
that rhetoric changed over time. It includes a serious discussion
of the place of English political, religious, and legal history
on Adams' thinking.
In "The American Revolution as a Constitutional Controversy,"
R. B. Bernstein builds upon the following ideas:
. . . The real state of affairs between Great Britain and
the British colonists of North America between 1763 and 1776
was far more complicated and agonizing than we remember it to
be. Professor John Phillip Reid of New York University Law School,
the first historian to examine seriously the constitutional
history of the American Revolution in decades, has provided
the key. He argues that the initial stage of the Revolution
(1763-1776) was a complex constitutional argument. At issue
in that argument were two competing versions of the unwritten
British constitution, both of them rooted in the tumultuous
constitutional struggles of the seventeenth century.
We must first understand what an unwritten constitution is:
Great Britain's constitution is not like the United States Constitution
in that it is not written down, or codified, in one authoritative
document that was framed and adopted at a specific time, or
revised by amendment at specific times. When eighteenth-century
Britons -- or such approving foreign observers as Voltaire and
Montesquieu -- extolled the British constitution, they meant
the entire complex of statutes, common-law judicial precedents,
individual documents having constitutional status (the most
famous of which was Magna Carta), and customs and usages making
up, or constituting, the structure of government. . . .Because
the British constitution was unwritten, however, that meant
that an array of understandings of its principles and terms
could spring up.
Links to Primary Documents that Demonstrate American Use of
British Common Law and "Constitutional" Principles
The Massachusetts
Body of Liberties, 1641
Consider the parallels between the Declaration
of Colonial Rights adopted by the First Continental Congress
on October 14, 1774 and the Declaration
of Rights the English compelled William and Mary to sign in
1689 as a condition for their coronation as part of the "Glorious
Revolution." (The Declaration of Rights" is sometimes
referred to as England's "Bill of Rights.")
“Habeas
Corpus in the Colonies” -- "THE writ of habeas
corpus has been regarded as one of the important safeguards of
personal liberty, and the struggle for its possession has marked
the advance of constitutional government. Magna Charta, Darnel’s
Case, the Petition of Right, the Bill of Rights and the Habeas
Corpus Act bear witness to the importance of the struggle. Our
rights at the present day therefore depend upon those acquired
by our English forefathers as transmitted to the colonies, which
are the connecting link in the process. Hence it is essential
that we should know what rights the colonists possessed."
Against
Writs of Assistance, James Otis, February 24, 1761 -- Otis
based much of his argument on the principle that Americans enjoyed
the rights that were protected by British common law.
Edmund
Burke, Speech on Conciliation with America, March 22, 1775 --
A member of the Parliament, Burke championed the American cause
by arguing that natural law as expressed in the English form of
government should promote freedom and prosperity in America.
"When dissensions first arose, we felt our hearts warmly
attached to the King of Great Britain and the Royal family;
but now the case is much altered ." Buckingham
County, Virginia, Statement of Independence, June 14, 1776
"Such has been the patient sufferance of these Colonies;
and such is now the necessity which constrains them to alter
their former Systems of Government. The history of the present
King of Great Britain is a history of repeated injuries and
usurpations, all having in direct object the establishment of
an absolute Tyranny over these States. To prove this, let Facts
be submitted to a candid world." Declaration of Independence,
July 4, 1776
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