The Rhetoric of Rights:
Americans are "Englishmen" and Englishmen Have Constitutional Rights

 E Pluribus Unum

 

 

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.

   

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.


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.

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."
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.
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

 


Index to This Section: Constructing an American Rhetoric of "Rights"

Americans are "Englishmen," and Englishmen Have Earned Constitutional Rights

Natural Law Guarantees All Human Beings Fundamental Rights

Divine Law Guarantees All Human Beings Fundamental Rights

Parents Have a Natural Authority Over their Children, but England has Not Behaved as a "Natural" Mother

The Model of Ancient Republics Show that Freemen Should Not Submit to Slavery

"Forefathers" Earned Freedom for All Americans

Colonists are Entitled to Charter Rights Given to Forefathers

America is Entitled to Rights and Respect Because It Is Destined to Be Mighty

 

 
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The E Pluribus Unum Project is funded by a grant from the National Endowment for the Humanities. It is co-directed by Dr. John McClymer, Professor of History, Assumption College; Dr Lucia Knoles, Professor of English, Assumption College; and Dr. Arnold Pulda, Director of Gifted and Talented student programs for the public schools in Worcester, MA. Visitors are encouraged to send inquiries or suggestions.