GOVERNMENT, says the American Declaration of Independence, is an artifice, a made thing. A thing is properly made when its making is governed by the end or purpose it is to serve. In the realm of artifice, end or purpose dominates. In the realm of political artifice described by the Declaration, the dominating end is the securing of rights: “. . . in order to secure these rights governments are instituted among men.” Important as other ideas in the Declaration may be—equality, consent, revolution—rights are thus simply central.
Although the Declaration declares government an artifice made by human beings, that is not at all the case with rights, for they are said to derive from the Creator. Rights thus precede government and result from no human making. Hence, rights are more fundamental than government in the double sense of being more original and of being the end or purpose of government.
The Declaration appears to present its chief claims, including its claims about rights, as “self-evident truths.” Nevertheless, it was as obvious to the drafters of the Declaration as it is to us that not all human beings understand government as they did—as an artifice in the service of rights-protecting. One very famous example of which they were much aware was the divine right theory, which most certainly denied that government was a human artifice. Not rights, but government itself derived from the Creator. According to such theories, what were primordially given were not the rights of the people but the rights of rulers and the duties of the people.1 Those who understood politics in terms of such theories therefore knew nothing of government as a thing made for the sake of securing rights and thus did not place rights at the center of their political thinking.
The origin of the rights-thinking articulated in the Declaration surely predated the American founding, but scholars disagree over its precise origin. Some place it as far back as the Roman law or the medieval counciliarists, while others find seventeenth-century sources like the Levellers, Grotius, Hobbes, or Locke to be more likely.2 Knowledge of the exact origin of the rights philosophy is hardly necessary for our present purposes, however: it is certain the Americans did not discover it but took it over from preexisting sources.
Nevertheless, they clearly did have a distinct awareness of themselves as innovators. In The Federalist, for example, James Madison observed that the Americans had accomplished “a revolution which has no parallels in the annals of human society.” And, he implied, they were about to innovate even more dramatically in the new constitution they were debating.3 Yet more authoritatively, the Americans accepted as one of the official mottoes of the nation the phrase “novus ordo seclorum”—a new order for the ages.4 The novel, the unprecedented, the unparalleled character of their tasks and accomplishments—this theme ran all through the founding era and well into the nineteenth century.5 Joel Barlow proclaimed that “a new task, entirely unknown to the legislators of other nations, was imposed upon the Fathers of the American empire.”6 John Adams specified the character of that novelty with particular clarity: “The United States of America have exhibited perhaps the finest examples of government directed on the simple principles of nature.” Therefore, he believed the American Revolution ought to be considered “as an era in their history” by all human beings in the future.7 The American Revolution, according to Thomas Jefferson in his very last written statement, was to be “the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves”; because “all eyes are opened or opening to the rights of man” they will replace ignorance and superstition with “the blessings and security of liberty and free government.”8 Therein, said the founders, lies the great novelty and power of the American experiment: the regime based on nature, the regime ordered to natural rights.
Not the discovery of, but the first attempt at, large-scale implementation of a rights-based politics was the chief novelty of the Americans’ political actions, and the source of their other great innovations as well, including their new republicanism. Setting a new task for politics, they could not follow ways already taken by others; no existing political orders could be a model for them. “History,” concluded Thomas Jefferson, “only informs us what bad government is.”9 The new end not only set new tasks but opened new possibilities for politics.
Yet the degree and character of that novelty are frequently obscured. J. G. A. Pocock claims America was founded in a “dread of modernity”; Gordon Wood says the Americans were devoted to “classical”—that is, very old—political ideals. The novelty of the revolution has been obscured not only by scholars but from the Americans themselves. The American Revolution has often been seen not so much as a novel phenomenon but as the third in a series of revolutions following on and to some degree continuing the English Revolution of the 1640s and the Glorious Revolution of 1688–89.10 In that light, the American principles are seen as carryovers of British political ideas. The natural rights philosophy presented in the Declaration was, says historian Paul Conkin, but an “elliptical summary of a well-developed tradition, one that was rooted in both classical and Christian moral theory and was refined in the modern period by a series of legal and moral theorists. . . . No position in Locke’s political writing”—and thus nothing that is Lockean in the Declaration—“was not already accepted, even eloquently defended, by Puritans who came to New England long before Locke wrote his treatises.”11
The Americans themselves provided testimony to the continuity thesis, and thus against their own consciousness of their novelty, in the label they frequently gave themselves—Whigs. By taking this name they meant to identify with those who had made the Glorious Revolution and their political successors. The Glorious Revolution of 1688–89 was indeed glorious; almost miraculously it paved the way for an end to a long period of extensive political instability—not only a civil war, but intense conflict between kings and parliaments, threatened invasions from abroad, violent conflicts over the succession to the throne, and a persistent inability to peacefully settle the religious question. From being one of Europe’s most turbulent countries during the seventeenth century, Britain went on to become celebrated for its stability.12 The revolution settlement, Lois Schwoerer has said, provided the means for resolving “some of the basic constitutional and political issues of the seventeenth-century English history.”13 Or, as John Toland, the late seventeenth-century admirer of Locke and editor of Harrington and Milton, stated, the Glorious Revolution “settled the monarchy for the future . . . under such wise regulations as are most likely to continue it forever.”14
Not too long ago, a generally accepted story about the Glorious Revolution went something like this: The revolution was inspired by, and was mostly understood in terms of, conceptions of politics that found classical expression in John Locke’s Two Treatises of Government. And since the chief ideas in Locke’s book are the chief ideas of the American Declaration of Independence, then, the old story went, the political understandings animating the two revolutions were much the same.15 Like many old and comforting stories, however, this one is untenable. Despite the fact that the principles of the Glorious Revolution were contained in documents whose very names contribute to the idea that the Americans were following in the wake of their English predecessors, the Americans differed from them in their clear commitment to the idea of rights.16 The Convention Parliament that offered the throne to Prince William of Orange and his wife, Mary, issued a Declaration of Rights in 1689, a document somewhat analogous to the American Declaration of Independence. A few months later, king and Parliament adopted a yet more official, more legal version, the Bill of Rights. Contrary to what their names might imply, however, the English Declaration and Bill of Rights not only lacked the Declaration of Independence’s central focus on natural rights, they equally lacked the other ideas associated with the rights theory in the American document. The chasm between the American and the British documents can readily be seen by considering the five chief doctrines of the Declaration of Independence: (1) equality; (2) government as artifact; (3) natural rights as the foundation and end of politics; (4) consent; (5) the right of revolution.
In addition to differences on these specific doctrines, the English and American documents have an almost entirely different overall character. Surely the most prominent feature of the American Declaration is the theoretical discussion beginning, “We hold these truths to be self-evident.” The English documents have no analogous presentation of the theory on which they are based. Indeed, the question arises regularly whether or not there is any discernible theory implicit in the Glorious Revolution or its justifying documents.17 The theoretical austerity of the English statements resulted in large part from the peculiar alliance of Whigs and Tories that came together to make the Glorious Revolution. Here was a classic case of diverse groups agreeing (more or less) on what to do but unable to agree on why. In her thorough study The Declaration of Rights, Schwoerer shows in great detail the process by which specific claims of a more theoretical sort, which Whig and Tory politicians sought to include in the document, were carefully compromised and often excised. “The result,” says H. T. Dickinson, “was a political compromise which was unintended, but surprisingly successful.”18 Another result, however, is that it becomes very difficult to discern the underlying theoretical rationale for the action they were taking.
Nowhere is that difficulty more evident than on the crucial issue of the “revolutionary” character of the action being justified. In the Declaration of Independence the Americans were unequivocal in affirming a universal right in all peoples “to alter or abolish” governments that failed to accomplish the ends for which government was established. Quite different was the Declaration of Rights, in which King James is said to have “abdicated the government,” the throne being “thereby vacant.” Not only do the English pointedly fail to endorse a right in the nation “to alter or abolish” the government, insisting instead on the patently fictitious idea of a quasi-voluntary abdication by the king, but they fail even to specify wherein that abdication occurred.19
Given the organization of the document, one might be tempted to conclude that the abdication was a consequence of James’s alleged abuses of power, which are listed just prior to the assertion that he had abdicated. That long list of actions, introduced as evidence of an “endeavor to subvert and extirpate the Protestant religion and the laws and liberties of the kingdom,” is said to stand “utterly and directly contrary to the known laws and statutes and freedoms of this realm.” The juxtaposition of the list of abuses and the assertion of abdication might imply, then, that the abdication consisted precisely in the commission of these great illegal acts.20 If so, that might amount to something like the positing of a right of revolution—that political power is held on condition of conformity to “the known laws and statutes and freedoms of this realm” and that the people have a right to call the king to account if that condition is violated.
That conclusion, in its generality, might appear to be a rough equivalent of the affirmation made in the Declaration of Independence of a right of revolution. Yet it differs in at least two important respects: The American doctrine makes the “right of revolution” conditional on the people’s judgment of the security of their rights, whereas the English doctrine would take its bearings by the more conservative standard of how the King’s actions conform to the established laws and liberties of the kingdom. What has been historically established, rather than what is naturally right—that represents the outer edge of a potential “theory of revolution” in the Declaration of Rights.21 Moreover, the American doctrine applies not only against kings but against any governmental authorities, including an elected legislature.22
Yet one hesitates to infer even this much of a theory from the Declaration of Rights, for the abdication claim is not presented as a conclusion from the abuses but as a separate item. The illegalities are introduced with one “whereas” and the abdication with another, presenting the two as parallel and more or less independent facts, the one relevant to the reaffirmation of rights about to be presented and the other to the new settlement of the throne to be established thereafter. “It was never explicitly stated that James II had been deposed because of his actions.”23 As Schwoerer shows, this ambiguity and uncertainty of meaning was surely deliberate—a carefully contrived effort to neither endorse nor deny various Whig and Tory theses about legitimate government.24
The Declaration of Rights not only fails to endorse a general right of revolution, it fails even to admit that the Glorious Revolution was a revolution. Perhaps that event should have been known to history as “The Glorious Abdication.” It is no surprise that the Declaration of Rights was hesitant to endorse a right of revolution or unequivocally to identify 1688 as a revolution. As a rule, political societies are hesitant to admit such a right. It can be very unsettling, for it counters the old view that authority must be secure in order to be effective. The Americans, with their clear affirmation of a right of revolution, introduced a certain novelty. They were willing to take a chance with this disruptive principle, and to encourage a judgmental and adversarial attitude by the people toward their government. It constitutes no small part of the American novus ordo seclorum.
The first of the Declaration of Independence’s “self-evident truths” and the most ringing of its political principles is the claim that “all men are created equal.” This clause has been a potent touchstone in American political life. Many, if not all, of the major issues of American politics have been discussed in its terms—republicanism, abolitionism, trade unionism, civil rights, to name a few. At the same time, this clause has, been very controversial. No great consensus exists on what it means or in what respect equality may be true. But whatever the Americans meant in their Declaration it is certain the English did not mean the same. In place of “all men,” the Declaration of Rights speaks of “all the estates of the people of the realm,” that is, “the lords spiritual and temporal and commons.” If there be a more fundamental and natural human equality, the authors of the Declaration of Rights felt no need to appeal to it. The unequal orders, or estates, of the people of the realm were the ultimate political reality to which they referred. Likewise, when they declared William and Mary king and queen, they did not speak of the nation as a sovereign body of naturally equal human beings, but again invoked the three estates. The relevant elements of political society are the differentiated and hierarchically ordered existing elements of English society cum polity.25
The inequality of human beings in the estates pervades the document. One particularly striking example appears in the item affirming the right to bear arms. Unlike the Second Amendment to the United States Constitution, which recognizes a general right to bear arms, the Declaration of Rights carefully limits that right to Protestants, and allows them arms only “suitable to their conditions and as allowed by law.” These latter qualifications on the right refer to well-established distinctions: no one with an income under 100 pounds a year could have a gun.26 Just as the Declaration of Rights did not contemplate natural equality, neither did it take equality of rights for granted. Rights could and did vary with one’s position in the polity. Again, the Declaration of Independence puts things very differently: the rights it recognizes are possessed by “all men”; there is no shadow of an idea that rights derive from or vary according to class membership.
The Declaration of Independence is emphatic about human equality, but, because it expresses itself so concisely, the text of the Declaration is not clear on what it means by equality. Nonetheless, the structure of the text elucidates what the bare words leave obscure. The Declaration presents an idealized historical sketch of human political history. First it speaks of an original human situation: how human beings are when created—equal—and what they have from their Creator—inalienable rights. Then the Declaration speaks of the formation of government: why government is formed—in order to secure rights—and how it is formed—by the consent of the governed. Then it speaks of what happens if government goes astray: there is a right to alter or abolish it and a right to remake it. That is, the “self-evident truths” of the Declaration are not six separate points, they are interconnected parts of one narrative.
The assertion of equality comes in the section on the original human situation. That original situation precedes the existence of government. Indeed, that is what equality means: originally, or by nature, human beings are not governed, they are not subjected to the rule or authority of any other human beings. Government, in other words, is not natural, but something that human beings make. Originally, all men are equal, because none is subordinated by nature or God to another. The Declaration does not deny that there are all sorts of inequalities among human beings, but it does deny that any of these implies a right to rule. This was a very explosive claim, for most political societies proceeded on the explicit or implicit idea that God or nature had selected “the better sort” to rule; society rested on the acceptance of the propriety of “natural” rulers ruling. This is clearly the assumption of the Declaration of Rights. There the natural condition, or the relevant condition for politics, is the division of the nation into classes—lords, commons, etc.—with degree and rank order to which have been attached claims to shares in political power.
The claim about natural equality can be restated in terms of the language used by political philosophers of the age: originally human beings exist in a state of nature. A state of nature is a state where no one has rightful authority over others. This perhaps comes out more clearly in a parallel statement in the Massachusetts Bill of Rights, where it is affirmed that men are by nature equal and independent, meaning not dependent or subordinate to others.
The Declaration of Independence takes up the issue of equality as part of its effort to explore the primeval human condition, the condition prior to established government and prior to all humanly established laws and rights. The Declaration of Rights betrays no such eagerness to uncover what preexists the established order; it merely attempts to discern and reassert the principles of that order. The Declaration of Rights thus contains no suggestion whatever that government is of human making. So silent is it on this question that Tory and Anglican adherents of divine right theories of politics were able to endorse the Declaration.27
They could never have endorsed the Declaration of Independence. Here it is very clear that government is an artifact made by human beings for their own purposes. Neither God nor nature makes government—human beings do. That means that government is like many things that people make. It can be better or worse made depending on how well the art of making is understood. This is one point of Thomas Jefferson’s letter to Roger Weightman, and indeed a dominant thought in the whole founding generation: people have recently come to understand much better than ever before why and how to make governments, and therefore they can expect great improvements in their political life. Here is one origin of the frequently noted progressive attitude toward politics and society in America. Society and polity are human constructs, and as such can be made better and better. On the other hand, if political life is understood as derived from God or nature, that suggests a limit to what can be done with it. It is what it is and what it should be. One must accept it with its limits; one must take a conservative attitude towards it.
The American Declaration of Independence sees government as an artifact because it denies the naturalness of political power. How, then, does political authority come to be? The answer is simple: by “consent of the governed.” When the Declaration speaks of an origin in consent, it does not necessarily mean an actual historical process; rather it refers to a kind of moral account of the origin, or, perhaps better put, a rational reconstruction of the origin. Once one understands nature properly, once one understands that neither nature nor God designates rulers or makes a government, then it is clear that humans must do it through consent—voluntarily and purposefully—with some end in view. This is not so much a thesis about the past as a vision of the present and the future; it presents a way to reconceive the nature of politics and the relationship of citizens to it.
To say that political power derives from consent of the governed is to say, in the language of political philosophers, that government derives from a “social contract.” It is also to say that beneath all political institutions lies popular sovereignty. The doctrine of consent is more about popular sovereignty, about the people as the ultimate locus and source of political authority, than it is about democratic governance.
The English Declaration of Rights, on the other hand, does not see government as an artifact and therefore is not concerned with the means of making it. Thus it contains no language regarding “consent of the governed.” The Declaration of Rights specifies that certain powers of government (for example, the tax power) must be exercised with the consent of the governed—or at least of some of them, those represented in Parliament. But it contains nothing of the idea that Parliament derives its powers, is constituted, via consent. That is, the Declaration of Rights does not endorse the doctrine of popular sovereignty that the Declaration of Independence asserts in its affirmation of the principle of consent.
More significant, however, than any of the other differences between the English and American documents is the difference regarding rights. The Americans appeal to rights that are bestowed by the Creator—God or nature—altogether prior to and independent of any organized political life. On the other hand, the rights declared in the Declaration of Rights can in no way be described as natural. They are, instead, “ancient rights and liberties” defined in “the known laws and statutes and freedoms of this realm.” The English rights are very old, but they are not natural; they derive from “the laws . . . of this realm” and therefore belong only to the subjects of “this realm” and not to all human beings. Furthermore, they belong to those subjects according to their place in the realm, that is, according to their “condition.” The rights are restricted therefore in a double sense: they are English rather than human rights, and they belong to the English differentially and unequally.28
Moreover, the rights in the Declaration of Rights hardly share more than the name with the rights in the Declaration of Independence. For one thing, compared to the sleek economy of the Americans’ Declaration, the English list of rights is a veritable hodgepodge. It lacks the compactness and logical interconnectedness of “life, liberty, and the pursuit of happiness.”29 It seems almost a miscellaneous assemblage with no obvious principle of selection or connection. In many cases, it is not even clear what the right being declared is, or who its possessor is. Some of the rights are best described as powers of, or restrictions on, political actors. One of the “rights,” for example, is the king’s lack of the right of “dispensing with laws . . . by regal authority.” Another affirms the right of Parliament to “authorize levies of money.” Neither these nor many other rights affirmed in the document are tied to rights of individuals. Not all the rights in the Declaration of Rights even appear to be rights in the sense in which the Declaration of Independence uses that term. For example, the last of the list says that “for redress of all grievances and for the amending, strengthening and preserving of the laws Parliament ought to be held frequently.” This is not so much a statement of a right belonging to anybody, not even to Parliament, as much as a declaration of a desirable state of affairs—frequent Parliaments. It is a right in the sense of “a right thing.”30
By contrast, all the natural rights enumerated in the American Declaration are rights belonging to individuals, and all are rights in a different and quite specific sense. They are not expressions of a desirable (a “right”) condition or state of affairs; they are rights that each individual can claim as his or her own—possessions to be deployed, options to be exercised at the choice of the rights-holder, rights in a permissive sense; active rights. The natural lawyers of the day defined right, according to its “strict meaning,” as “a certain moral power which every man has, either over his own things, or over things due to him,” and the Declaration uses the term in that sense.31 An example might make the difference clearer. The right of free speech means that the right-holder has the option to exercise it; the right is permissive, but not obligatory. Right in the other sense would imply an obligation rather than a permission to speak. The difference is captured most commonsensically perhaps in the distinction between “rights” and “what is right.” The American Declaration speaks exclusively of the former, the English Declaration speaks at least some of the time of the latter.
Most significantly, the Declaration of Rights fails to affirm the central point in the Declaration of Independence’s theory of government: there is no suggestion that government exists for the sake of securing rights and only for that. Obviously, rights of the sort declared there are important, but they are not the very raison d’être of political life. Since they do not predate but derive from political life, there is no question of government’s coming to exist for their sake. Rights are conditions or limits or even means of rule; they do not stand as the purpose of governance.
The difference between the conceptions of governance in the Declaration of Rights and the Declaration of Independence stands out even more clearly in the light of Schwoerer’s observation that despite the claim in the former document that “all and singular rights and liberties asserted . . . are the true, ancient and indubitable rights and liberties of the kingdom,” yet many of the rights lack such a clear pedigree. She concluded that more than half the rights were not, in the form declared, ancient rights at all. Parliament adopted the “time honored device” in English legal history of describing the new as the old.32 True as that may be, it remains significant that the rights are described as “ancient and indubitable” rather than as natural. That the Declaration of Rights denominates new rights as old ones only goes to underline how distant from any doctrine of natural rights the theory of the document is. The only kinds of rights it knows of or can recognize as legitimate are historical and constitutional, not natural rights.
All the other differences that have come to light between the theories of 1689 and those of 1776 derive ultimately from their differences on this central issue of rights. Government as artifact, consent as the means of instituting and controlling legitimate political power, natural equality, and a genuine right of revolution all derive from the Americans’ appeal to rights altogether prior to and independent of any organized political life. To the English, if rights are neither inalienable nor derived from nature, it follows that there is no natural right of revolution. Whether any right to resist was granted in the English version would seem to depend on the positive—and variable—content of the historical rights.33
Tracing rights back to a legal rather than a natural foundation, the theory of the Declaration of Rights can have no real place for a prepolitical condition.34 On the other hand, the commitment to natural rights has everything to do with the positing of a prepolitical situation in the Declaration of Independence. If political society were a natural growth, as Aristotle had it, then the political community itself would have a natural status supervenient over, or at least rival to, the individual and his or her rights; moreover, political life under the Aristotelian conception serves a natural end that comes into sight only in the fully developed polity. Even if government in some sense naturally emerges, according to the doctrine of the Declaration its “just powers” derive only from rational consent of the governed—that is, consent to rule in the service of rights-securing. Only a rational making, not a natural growth, can produce a just or proper government. Government must therefore be a human artifice. If an artifice, then there must be a (theoretical) prepolitical situation in which and out of which the political arises. Thus the idea of government as artifice, too, is ultimately subordinate to the commitment to rights-securing.
To summarize: The rights and liberties in the English Declaration of Rights are not tied to God or nature as their source; rather they are “ancient rights and liberties”; they belong not to all human beings but “to the people of this kingdom” as arrayed in their “estates” and “suitable to their conditions.” They set limits on the royal power, but their protection is not said to be the very purpose of government. The rights mentioned are not the grand human rights of “life, liberty, and pursuit of happiness,” but rather, for the most part, claims that the king may not take certain actions without the authorization of Parliament. The place of rights in the Declaration of Rights shows it to have been an important document in the rise of constitutional government, but it does not express the same understanding of the nature and purposes of government as the Declaration of Independence does. It could not produce, as the natural rights philosophy was to do, the new republicanism.
Thus, the old story of a direct line of descent from the English revolutionaries of 1688–89 to the American revolutionaries of 1776 does not survive a comparison of the two declarations. “The public and authorized theory of what had occurred in 1688–89,” concluded J. G. A. Pocock, “that [theory] on which the houses of the convention parliament had been able to agree and which was contained in the public documents of the time—really did base its interpretation on the doctrine of the ancient constitution, more than on the doctrines of contract, natural right and reason propounded by Sidney or Locke” (or, we might add, by the American Declaration of Independence).35
The revolutionaries of ’88 and ’76 acted out of quite different conceptions of politics and, not surprisingly, produced quite different postrevolutionary regimes. The English, in their account of things, conducted a revolution in the original sense—the restoration of an older order that had been disrupted. They reaffirmed their “ancient rights and liberties.” The Americans, on the other hand, neither shrank from novelty nor feared innovation. Was not their glory, James Madison asked, precisely their willingness to innovate?36 The most obvious explanation for the conservative character of 1688 is ready at hand: The Glorious Revolution was so glorious precisely because nearly the entire political nation was able to converge on the deed and to subscribe to the word, the Declaration of Rights, which more or less described and justified it. Controversial theories were not welcome.
Contractarian ideas much closer to those that ultimately made their way into the Declaration of Independence did put in an appearance at the Convention Parliament as it drafted the Declaration of Rights. Their fate reveals the ambiguous status of such ideas at that time and place. The idea of an original contract was introduced into the debates by Sir Robert Howard: “The constitution of our government is actually grounded upon pact and covenant with the people,” he asserted. Those who adhered to the idea of an original contract seemed to have in mind the theory that James’s violation of it was the basis for his no longer occupying the throne; his misdeeds had produced a “forfeiture” of his right to rule. Not all members of the convention agreed with the forfeiture theory, however, and some who might have were clearly pleased to find in the abdication theory a way to avoid the issue altogether. At one point, the House adopted a resolution declaring the throne vacant—a resolution whose Delphic opacity probably reflects the lack of consensus on the contract issue:
Resolved, that King James the II, having endeavoured to subvert the constitution of this Kingdom, by breaking the original contract between King and People; and by the Advice of Jesuits and other wicked persons, having violated the Fundamental laws, and having withdrawn himself out of this Kingdom, has abdicated the government, and that the throne is thereby vacant.
The grammar and structure of the resolution defy any simple analysis—only master legal minds could draft such a text—so that it remains difficult at best to ascertain the contribution the violation of the “contract” made to the throne’s becoming vacant. Although the language of original contract does appear explicitly—a clear victory for the partisans of the concept—nothing explicit regarding a forfeiture resulting therefrom appears—a victory for those who had reservations about the idea.
After an even more hesitant debate in the House of Lords, the Commons resolution was accepted by the upper house. But the most revealing fact about the original contract was yet to come: despite both houses’ adoption of resolutions with (ambiguous) contractarian language in them, the documents of greatest importance, the Declaration and Bill of Rights, dropped all such language.
No contractarian language appeared because the politically dominant elements of the nation were not united in a willingness to understand or publicly describe their politics in that way, nor to commit themselves to the grounds and implications of that view. Schwoerer believes that even though no explicit contractarian language appears, nonetheless Parliament “in subtle ways of organization and language in the document, implied that a contract had been broken.”37 The evidence on this point, in my opinion, is much less clear than she finds it, as I have already indicated in my earlier discussion of the “theory of revolution” of the Declaration of Rights.
Moreover, the Declaration of Rights itself “was not, as sometimes alleged, presented to [William and Mary] as a condition they had to accept before receiving the crown.” That is, not only did the Declaration of Rights drop all reference to the “original contract” but it was not itself treated as a contract with the new rulers.38
At the key moment, therefore, the English retreated from contract. Ideas of contract were perhaps feared to be too radical, too chimerical, too unsettling of political stability and, perhaps, of social and economic arrangements as well. These hesitations about contractarianism came amid memories of the 1640s, when contract ideas were prominently used in the Civil War, in the regicide, and in Leveller proposals for a new political order. Many opponents of the king in 1688 found themselves walking the narrow line between absolutism and disorder. The political principles that might stave off the one threatened to bring along with them the other. This hesitation in England partially accounts for the novelty of the Americans’ political action in the eighteenth century: the Americans did not discover the natural rights/social contract theory adumbrated in the Declaration of Independence; but they were the first to embrace it as the official basis of their most solemn and lasting political actions. Where the English feared to tread, the Americans rushed in.
One part of the old story, then, is surely false: the American revolutionaries did not understand politics in the same way the English revolutionaries of the preceding century did. That old story contained as a central character a thinker who stood as a connecting link between the English and the Americans—John Locke. But if the two ends of this alleged chain do not belong together, what about Locke? Does he belong with either the English or the American revolutionaries? As a historical matter, of course, Locke supported the events of 1688–89. In self-imposed exile in Holland when the revolution began, Locke returned to England with the soon-to-be Queen Mary. More significantly, he soon published his Two Treatises of Government, a work intended, according to its preface, “to establish the throne of our great restorer, our present King William, to make good his title.”39
Despite his support for the Glorious Revolution, Locke’s political doctrine shares almost nothing with the official theory of the “revolution” set forth in the Declaration of Rights, but instead contains all the defining doctrines of the American Declaration of Independence. Locke not only accepts the doctrine of equality, but expresses it in the Two Treatises in language nearly identical to the Declaration of Independence and related American documents. Human beings, he says, are “naturally in . . . a state . . . of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another” (II 4). Equality is the natural or original condition of human beings, the condition prior to the institution of civil government, for it is what must be first understood in order “to understand political power right” (II 4). Human beings are equal with respect to “power” or “jurisdiction,” that is, with regard to authority over one another (just as in the Declaration) but not with regard to other matters. As Locke explains at greater length, by natural equality he
cannot be supposed to understand all sorts of equality: age or virtue may give men a just precedency: excellency of parts and merit may place others above the common level: birth may subject some, and alliance or benefits others, to pay an observance to those to whom nature, gratitude, or other respects may have made it due. (II 54)
These various human inequalities may imply inequalities of one sort or another in relations among persons, but these inequalities never extend to “jurisdiction or dominion over one another” but merely to “precedency” or “observances.” Natural equality is thus nothing but “that equal right that every man hath to his natural freedom, without being subjected to the will or authority of any other man” (II 54).
Natural equality and natural liberty are almost identical. Human beings are naturally equal in their original freedom; their natural freedom implies their original equality. Such is precisely the thought contained in the Declaration as it stands, and more explicitly in Jefferson’s original draft: “that all men are created equal and independent.”40 John Adams’s Massachusetts constitution closely echoed this language: “all men are born free and equal” (Adams had been on the committee to which Jefferson had submitted his draft). The Virginia Bill of Rights puts it similarly: “that all men are by nature equally free and independent.” Locke in several places uses language almost identical to these various American formulations: “Men being . . . by Nature, all free, equal, and independent” (II 95; cf. II 6, 7).
Locke’s adoption of the view that government is an artifact coheres readily with his understanding of natural equality. The first announced topic of the Second Treatise is the “true original” of government in a human making, as opposed to the false original in God or nature, as presented by Filmer. The very structure of the Two Treatises reflects the artifactuality of the political. Locke announces as his task the proper identification of “political power,” so that “the power of a magistrate over a subject, may be distinguished from that of a father over his children, a master over his servant, a husband over his wife, and a lord over his slave” (II 2). In insisting that these are all “distinct powers,” Locke unmistakably echoes the opening of Aristotle’s Politics, where the uniqueness of the political association is asserted against those who would assimilate the political to familial or despotic relations.41
Locke’s theme may be the same as Aristotle’s, but his method of developing it is entirely different. Rather than showing how nature produces different associations or relations, as Aristotle does, Locke shows that by nature human beings exist in a “state of nature”—that condition of no-rule, no-authority already described under the rubric “equality.” Nature provides not the source of the relations, which Locke is concerned with distinguishing from the political, but the benchmark from which those relations depart. The opening chapters of the Second Treatise are devoted to the elucidation of how the various relations may justly arise from the original state of nature: lord-slave (chapter 4); master-servant (chapter 5); father (parent)-child (chapter 6); husband-wife (chapter 7); magistrate-subject (chapters 7–8). All these relations are human makings, including in decisive respects the seemingly most natural.42
The order of Locke’s presentation differs tellingly from Aristotle’s. The latter treats first the association between husband and wife, because
in these matters as elsewhere it is by looking at how things develop naturally from the beginning that one may best study them. First, then, there must of necessity be a conjunction of persons who cannot exist without one another: on the one hand, male and female, for the sake of reproduction (which occurs not from intentional choice but—as is also the case with other animals and plants—from a natural striving to leave behind another that is like oneself).43
Locke, on the other hand, places the marital relationship late in his progression because he emphasizes not the naturalness but the increasing artificiality of the relations, or better, their increasing dependence on consent, compact, or conscious making. (cf. II 24, 25, 50, 68–73, 81–82).
In his account of the “true original” of the various relations, Locke presents the rational origin, an origin not always properly understood in human societies. To the degree these fundamental relations are misunderstood, the institutions made via that misunderstanding fall short of the rational order pointed toward by knowledge of the “true original.” Because of such misunderstandings, for example, men like Robert Filmer fail to credit the authority of the mother over the child, equal to that of the father (cf. II 52). Locke’s “history” of the origin of human relations from out of the state of nature is thus not literal history.44 It presents, if the expression can be excused, a rationalist mytho-poetic account of the human situation in nature. Like the Declaration’s, that account is essentially progressivist in character: nature leaves human beings in a situation much open to improvement through human making in the broadest sense.
Locke moves toward the political relation, and thus toward a relation dependent exclusively on consent. “Men being, as has been shown, by nature, all free, equal and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent” (II 95; cf. 119). The relevant consent, derivative from the equality of all men, is no once-and-for-all thing given by some distant ancestors in a moment primeval.45 Contrary to the claims of Grotius, Hooker, and other earlier thinkers, Locke emphasizes “that all men are naturally in that state” of natural equality “and remain so, till by their own consent they make themselves members of some political society” (II 15; emphasis added).
The rational making of government, according to Locke, occurs for the very same reason the Declaration says it does: “for the securing of men’s rights” (II 219; cf. II 124, 127, 131). Locke mostly, but not entirely, renames rights as “property”; he uses the language of rights more or less interchangeably with the language of property. Indeed, in the key place, Locke asserts the dependence of property—in the broad sense of life, liberty, and estate as well as in the narrower sense of property in things of the external world—as “founded upon the right [human beings] have, to make use of those things, that were necessary or useful to [their] being.” The foundation is the right of preservation (I 86), or, as in the Declaration, the right to life.
Finally, Locke presents a teaching on resistance or revolution more detailed than, but identical to, that contained in the Declaration. He voices none of the hesitations or limitations characteristic of the English Declaration of Rights. The right belongs to the people as such and can be exercised when they judge that the rulers have “breached their trust” of rights-securing. Like Jefferson, Locke believes that this right cannot and will not be exercised frequently—in Locke’s formulation, the people will tolerate “many wrong and inconvenient laws,” but will or should react forcefully to “a long train of abuses, prevarications, and artifices, all tending the same way” (II 225). Jefferson incorporated into the Declaration not only the same idea but almost the very language: “when a long train of abuses and usurpations pursuing invariably the same object. . . .”
Doctrinally and verbally, then, the Declaration and the Two Treatises are remarkably alike. It is clear that by the time of the Revolution the American Whigs had adopted the Lockean political philosophy. A recent intellectual fashion, however, has been to challenge the strength or importance of the connection between Locke and the American Whigs, or, in the extreme case, to deny it altogether. The strongest, as well as the least defensible, challenge to the connection was entered by Garry Wills.46 Wills attempts to dissolve the bonds between Locke and Jefferson and to weave new ones between Jefferson and the Scottish Enlightenment, especially between Jefferson and Francis Hutcheson. He presents evidence of two kinds for his claims—evidence that shows a lack of connection between Jefferson, in particular, and Locke, and more general evidence concerning the status of Locke among the Americans before the revolution.
Wills makes claims about the relationship between Locke and Jefferson so outrageous that many scholars have responded critically and sharply, showing, among other things, that Wills is simply mistaken when he claims there are “no precise verbal parallels” between the Declaration and Locke’s Second Treatise.47 Many have scoffed at Wills’s suggestion that Jefferson’s repeated practice of recommending Locke’s Treatises as a basic reading in politics to friends and relatives, as well as for the University of Virginia curriculum is no evidence of a “close acquaintance with the text.” Perhaps Wills is correct in finding “nothing dishonest” in Jefferson’s so highly recommending a book he does not know well and indeed might never even have read; but it seems odd, if not rather foolish, for Jefferson to have done such a thing.48 It certainly seems more than foolish for Jefferson to have listed Locke among the intellectual progenitors of the Declaration if he either had never read him or disagreed altogether with what he read.49
Whether Wills’s handling of the parallel issue of the Hutcheson connection betrays more than mere foolishness is a nice question indeed. For while Wills has no difficulty dismissing the evidentiary power of a statement such as Jefferson’s that “Locke’s little book on Government is perfect as far as it goes,” he is entirely undeterred by the fact that Jefferson not only never uttered such praise for Hutcheson but never spoke of Hutcheson at all, never once recommended Hutcheson’s books to those who sought guidance on reading in politics and law, never owned Hutcheson’s major work, never included Hutcheson (as he did Locke) among those authors who were sources for the Declaration.50 Wills’s Jefferson, in short, is a most odd fellow—he praises highly to all and sundry, he recommends to all who ask him, he attributes decisive influence to a work he has never read at all, or at least not with “attention and profit,” and with which the deepest thrust of his thought disagrees, while he neither mentions nor recommends nor attributes any influence to the author whose work is genuinely authoritative for him.51 Was Hutcheson so valuable that Jefferson wished to keep the Scottish philosopher all for himself?
Wills is no more persuasive in his treatment of Locke’s relations to the Americans more generally. Consider his inferences from Lundberg and May’s survey of colonial library holdings.52 “Copies of the 1714 edition of Locke’s work can be found, at some point before 1776,” says Wills, “in 23 percent of the known colonial libraries; but the distribution of interest in the different volumes of those works is measured by the fact that separate volumes of the Treatise(s) show up in 15 percent of the libraries, while separate copies of the Essay were in 41 percent.”53 At best this proves that the Treatises were less popular in America than the Essay, an entirely unremarkable and irrelevant finding. Even if Wills is correct in his guess about the distribution of interest in the different books contained in Locke’s Works, the interest in the Treatises measured in this way (23 percent) still exceeds the distribution (20 percent) of Hutcheson’s Works and System of Moral Philosophy together. If we tally distribution in a more reasonable way—additively—we find that Locke’s Treatises appeared in 38 percent of the libraries, more than Sidney’s Discourses (23 percent), Cato’s Letters (37 percent), Molesworth’s Account of Denmark (16 percent), and Hoadley’s book on government (7 percent).54 Moreover, according to the testimony of Lundberg and May, it is doubtful that Hutcheson could have formed part of the “American mind” that Jefferson was “harmonizing” in the Declaration, for the Scottish writers became popular in America only after the revolution.55
H. Trevor Colbourn’s survey of colonial library holdings produces similar findings. Locke’s complete Works or a separate edition of the Treatises appeared in a full 50 percent of the libraries (thirteen out of twenty-six), slightly more than Sidney’s Discourses, which appeared on twelve lists, and Cato’s Letters, which appeared in eleven.56 Sidney’s and Cato’s are the only political works that appear in the libraries with anywhere near the frequency of Locke’s books.
Wills also relies heavily on the findings of John Dunn about the reception of Locke in eighteenth century America. Dunn’s essay itself represents a strong but not so extreme challenge to the received view of Locke’s influence on the colonists. Denying neither that the colonists knew Locke’s Treatises nor that they considered him an important thinker, he argues instead the following theses: (1) Locke’s Two Treatises were not in fact so popular in America as their reputation would suggest. They did not achieve popular esteem until after 1750, and then largely on the basis of Locke’s reputation as the author of the Essay Concerning Human Understanding rather than any special understanding or appreciation of the Treatises. (2) By the time the Treatises became popular “the tradition of political behavior within which the colonists conceived their relationship with England was already highly articulated.” Moreover, when the colonists did begin to read Locke, they did so “with gradually consolidated political intentions and they had come to it to gather moral support for these intentions.” On top of that, what use the colonists made of Locke was “conceptually uninteresting.” (3) Finally, the Treatises present a view of politics by no means unique to Locke. This work was “only one among a large group of other works which expounded the Whig theory of the Revolution. . . . The readiness with which many scholars have detected the influence of the Two Treatises in England and America is at least in part a product of the fact that they have read so little else of the English political writing contemporary with it.”57
While not going so far as Wills, Dunn does go a good deal farther in minimizing the role of Locke for the American revolutionary generation than the relatively cautious revisionists, such as Clinton Rossiter and Bernard Bailyn, who preceded him. They had suggested that the revolution could not properly be seen as begotten by John Locke alone, but that other thinkers of the dissenting Whig tradition also played a formative part in shaping the Americans’ political consciousness. Nonetheless, Rossiter’s sober assessment remained that Locke stood “primus inter pares.”58
It is difficult to repose much more confidence in Dunn’s findings than in Wills’s, however, for he consistently raises very extensive claims which he fails to support with adequate evidence, and he consistently interprets what evidence he has to tally with what look to be preconceived conclusions.59 A particularly blatant instance is his conclusion that the Treatises came late to popularity, a conclusion based on his own survey of colonial library holdings. “Apart from an isolated copy to be found in [a] library . . . in Virginia in 1701, we do not even know that copies of the Two Treatises reached the American colonies before 1724.” But we do not know that they did not reach the colonies either. Dunn does not make clear how few library lists dating back to 1724 there are—according to Colbourn’s survey, only three for the entire thirteen colonies. In most libraries the earliest list is later than that, and just when Locke’s work was acquired is usually impossible to determine from the lists we have.60 Moreover, there is evidence to suggest that the colonists were reading Locke early and seriously. Dunn himself recounts the use of Locke’s name and political doctrines in a prominent trial for seditious libel in 1724; in the same year Locke’s discussion of property was used in an essay on the relations between the whites and Indians in America; by 1728 an edition with a widespread circulation was abroad in America.61
Both Alice Baldwin and Claude Newlin, in their studies of the clergy in America, found that Locke was indeed a “great source,” and an early one for the clergy’s political understanding. According to Baldwin,
He was quoted by name as early as 1738, but his influence is to be seen in earlier works. Especially after 1763 the references to him are numerous, not only by the more prominent ministers of the larger towns but by those of country villages as well. And in many works in which no direct reference is made one finds his theories, sometimes his very phrases, and this is true for years before 1761 as well as afterwards.62
That Locke was frequently read before 1742 seems evident from the following reference in a sermon by Thos. Foxcraft in Boston, 1740. On the title page, quoted from Dr. Watt’s Humble Attempt, is the following: “You are not to stand up here (in the Pulpit) as a Professor of Ancient or modern philosophy, nor an Usher in the school of Plato, or Seneca, or Mr. Locke.”63
In 1744 Elisha Williams presented an extensive and very competent summary, with attribution, of Locke’s Second Treatise. Williams characterized his own thought as “considering things as they be in their own nature, what reason teaches concerning them.” In order to present the rational teaching on politics, Williams said, he had “given a short sketch of what the celebrated Mr. Locke in his Treatise of Government has largely demonstrated.” On these Lockean principles, Williams believed, “it is justly to be presumed all are agreed who understand the natural rights of mankind.”64 This is hardly the sort of thing one would say of a work largely unknown and of little interest. Moreover, when Williams turned to the question of what people must do to free themselves from tyranny, he referred again to Locke. “Here is a minister in 1744 using the very arguments of 1775. . . . Here is clear evidence of the transmission through the clergy of the theories of Locke.”65 Jonathan Mayhew, the liberal New England cleric, wrote that he had been “initiated in youth, in the doctrines of civil liberty, as they were taught by such men . . . as Sidney and Milton, Locke, and Hoadley.” Another important colonial who later testified to studying Locke in his “youth” was John Adams.66
More recent and more thorough surveys than Dunn’s show Locke to have been a much greater presence in colonial America than Dunn or Wills allows. Steven Dworetz “discovered a great many more citations of ‘Locke on Government’ in the Revolutionary writings, clerical and secular, than of any other non-biblical source.” His findings match those of Donald Lutz’s massive citation analysis, which found that “Locke, by a very wide margin, was the most frequently cited author in the American political writings” from 1760 to 1775.67
Williams, Mayhew, Adams, and other “opinion leaders” like them spread the principles they had learned from Locke to many who themselves never read Locke but who thus indirectly fell under his influence. The issue of indirect influence raises a very difficult problem for attempts like those of Dunn and Wills to read out the impact of a thinker from the distribution of his works and the mentions of his name alone. Although it is difficult to establish quantitatively, there is a great deal of evidence showing a substantial Lockean influence beyond what appears in the direct and explicit references Dunn relied on.
Limiting oneself to explicit citations systematically understates the evidence for the role of Locke in prerevolutionary writings, according to Dworetz. Even outright “plagiarism [from Locke] was not uncommon in the written political polemics of the Revolution: the rules of conventional scholarship simply do not apply under these circumstances.” To the extent that this is the case, Dunn’s citation-analysis methodology is necessarily flawed. “Counting citations fails to penetrate . . . the relationship between Locke’s ideas and Revolutionary theory and practice.” In addition to un-attributed quotations or very close paraphrases, there are also important “linguistic, theoretical, or doctrinal similarities between a Revolutionary text, and, for instance, Lockean theory that are not accompanied by an explicit citation of ‘Locke on Government.’”68
In addition to citation-counting, patient and sensitive analysis is needed. Dworetz attempts to supply this kind of supplement to Dunn’s methodology through a careful study of clerical writings. That is valuable, of course, but another method has for the most part inspired the present study. I am taking especially serious note of official and quasi-official documents like the Declaration of Independence and the Declaration of Rights, King Charles’s Answer, and the Virginia Bill of Rights, for these bespeak much more than the idiosyncratic views of one or another thinker. Yet these sorts of texts hardly ever make their theoretical roots explicit and thus especially resist Dunn’s method.
Not only is there good reason to question Dunn’s claim that Locke enjoyed no early popularity or influence among the Americans, there is also good reason to question his assertion that the Treatises’ fame was entirely derivative from the greater fame of the Essay Concerning Human Understanding. For this claim neither Dunn, nor Wills, who repeats the point, provides any evidence whatever. We may readily concede the stature of Locke’s Essay in the eighteenth century without necessarily accepting the view that the Treatises lived entirely in its shadow. The Americans relied on the Treatises repeatedly and quite specifically. Jefferson rated Locke one of his trinity of the three greatest men who ever lived, along with Newton and Bacon, and there is no reason to suppose, as Wills supposes, that Jefferson was referring only to the Locke of the Essay. After all, he and the other Americans spoke with the highest regard for Locke’s productions in the realm of politics and quoted or referred to them at length. Probably as good a summary statement as can be found of the Americans’ view of Locke’s Treatises was written by Nathaniel Ames, whose almanacs are said by Rossiter to be “an especially rich storehouse of common political notions.” According to one of those almanacs, “as it is unpardonable for a Navigator to be without his charts, so it is for a Senator to be without his, which is Locke’s ‘Essay on Government.’”69
Even were the facts near to what Dunn claims them to be, he is quite misleading in suggesting that Locke’s alleged post-1750 impact occurred only in the context of an already “highly articulated . . . tradition of political behavior” formed entirely independently of him. The fact is, as we shall see, Locke himself was one of the great formative influences in the Whiggish tradition to which Dunn, following Bailyn, refers.70
By the time at which Dunn admits the Americans were paying attention to Locke, they were doing so, he says, in “conceptually uninteresting ways” (whatever that might mean) and they read him, “with gradually consolidated political intentions,” only in order “to gather moral support for these intentions.” Perhaps they did, but again Dunn gives us no reason to believe it so, other than, perhaps, the fact that there were others, like Peter Van Schaack, who drew different conclusions from Locke than did Adams, Jefferson, and the other American Whigs. Remarkably, it was Van Schaack and those who agreed with him who, Dunn thinks, read Locke “with deep consideration and a peculiarly close perusal,” proving, one supposes, that whatever Adams and Jefferson were doing in making the revolution, they were not inspired by Locke.71 Dworetz points out the incompleteness of Dunn’s story, however. Dunn “left the theater at intermission. . . . In 1776, Van Schaack, by his own account of the event, changed his mind, without changing his political principles.” Earlier, he had “allowed the British government the benefit of the doubt”; more experience taught him that he had reasoned on the basis of “inadequate information concerning parliament’s intentions.” Van Schaack, then, provides no support for the idea that a genuinely Lockean reaction to the events of 1763–76 would produce a Tory rather than a Patriot stance: using the same “deep consideration and peculiarly close perusal,” Van Schaack came to the same conclusions as Adams, Jefferson, and the others.72 But of this, and much else connecting Locke to the American Revolution and the Declaration of Independence, we learn nothing from Dunn.
Dworetz quite sensibly concludes that although the influence of Locke on the Americans is incontestable, the real question remains, How did they understand Locke? Locke’s political philosophy is beset with notorious ambiguities. Is he a philosopher of rights or of duties? A supporter of capitalism, or mercantilism, or an enemy to private property in any form? a pro-Hobbesian or an anti-Hobbesian? a bourgeois liberal or an anti-bourgeois thinker? a religious thinker at bottom or a “secular rationalist”? All of these contrasting positions have been taken in the recent literature, and the fact that contemporary scholars disagree so much about Locke supports Dworetz’s contention that we cannot take for granted that we know how the Americans or any other of Locke’s near contemporaries understood him or just what their embrace of him meant. Nonetheless, we cannot see how others understood him without first attempting to understand him for ourselves. And rather than attempting to understand him “backwards,” so to speak, from today’s viewpoint we must try to see him in an authentically historical manner, in the context of the political thought that formed the most immediate context for his work as a Whig thinker.
Dunn frames the issue sharply when he insists that Locke’s Treatises were by no means unique in “expounding the Whig theory of the Revolution.” The official document of the Glorious Revolution may not be Lockean, but “political writing contemporary with it” was more or less identical to Locke’s Two Treatises.73 The character of liberal modernity and the new republicanism will not stand forth until we place Locke’s thought into the seventeenth century political, religious, and philosophic context from which it emerged.