The Consent of the Governed
“We hold these truths to be self-evident, that all men are … endowed by their Creator with certain unalienable Rights, … That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
The Declaration’s first two self-evident truths—equality and rights—are relatively simple truths that announce the existence of objective moral principles grounded in the observable facts of human nature. These two truths are intimately connected and can be summed up as a single principle: all men have an equal right to govern themselves. The revolutionaries’ philosophy of equal rights says that no man is by nature the slave or the ruler of another. The Declaration’s third self-evident truth, which says—“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed”—is considerably more complex than the first two truths.
The Declaration’s third truth is complex in that it incorporates and mixes three interrelated claims about government: (1) that the purpose of government is to protect rights, (2) that governments are necessary to secure rights, and (3) that the just powers of government are derived from the consent of the governed. The complexity of the Declaration’s third self-evident truth is compounded by the fact that it is built on several unstated assumptions, which include the following: (a) that man has rights that exist prior to the creation of government; (b) that there exists a prepolitical “state of nature”; (c) that man’s rights are insecure in natural society; (d) that the consent of the governed is a necessary mechanism for establishing legitimate government; (e) that legitimate political societies are created by a social contract that defines government’s just powers; and (f) that government is a man-made rather than a naturally occurring phenomenon. Unlike the Declaration’s first two self-evident truths, which state principles as moral facts (i.e., equality and rights), the third truth indicates human action, which includes individuals consenting to and instituting governments for the purpose of securing rights.
This chapter and the next illuminate the meaning of the two key concepts of the Declaration’s third self-evident truth: consent and government. The discussion here focuses on the idea and practice of consent in two contexts: in the broader philosophical context of the seventeenth and eighteenth centuries, and in the political context of the imperial crisis. Chapter 9 examines how the revolutionary generation understood the origin and nature of government.
CONSENT IN THEORY: IT USUALLY BEGINS WITH JOHN LOCKE
The best-known principle of the American Revolution prior to the publication of the Declaration of Independence was the famous battle cry associated with the Stamp Act crisis of 1765: “No taxation without representation.” The genesis of America’s revolutionary mind can be traced to that year, but surely its principal ideas did not spring up just then out of nowhere. Where did the principle of “no taxation without representation” come from?
The fountainhead of this principle can be traced to three sources: first, to English political and constitutional practice dating back to Magna Carta and earlier; second, to the outpouring of English political writings first published during the Exclusion Crisis (1679–81) and then during and after the Glorious Revolution (1688); and, third, to philosophical ideas developed during the seventeenth-century Enlightenment, particularly in the writings of the “law of nature” theorists, such as Hugo Grotius, Samuel von Pufendorf, Jean-Jacques Burlamaqui, Emmerich de Vattel, and, most especially, John Locke. The theory of consent developed in Locke’s Second Treatise profoundly shaped the development of the American mind. Like a cultural tsunami, the philosophic ideas that swept over Europe in the seventeenth and eighteenth centuries soon crashed on American shores. These New World provincials drew from this wellspring of ideas from the start of the imperial crisis. The Stamp Act triggered a deep-seated moralism that was latent in colonial culture to rise to the forefront of the American mind. The insurrection of 1765 was the first cause of 1776, but it was also a consequence of seismic shifts that had been taking place in Anglo-American intellectual culture for decades.
From the beginning of the imperial conflict in 1765, colonial America’s leading thinkers (as well as scores of newspaper writers and pamphleteers) interpreted what they took to be the unjust actions of the British Parliament through the lens of Lockean consent theory. There is no point in reciting or analyzing the Lockean argument as it was presented in the Second Treatise because it was copied and used almost verbatim by eighteenth-century Americans. In fact, the Lockean argument was the colonists’ default position from the moment the Sugar and Stamp Acts were announced. A pure Lockean theory of consent had been steadily gaining ground throughout eighteenth-century America, particularly among Protestant ministers, which then culminated in its crystalline presentation in the Declaration’s third self-evident truth.
How did the Lockean argument develop in colonial America? The first known use of Locke’s ideas in the colonies occurred in 1701, when John Montague, a London representative of several hundred New York landowners, published a pamphlet defending his clients’ land claims from the grasping hands of the governor and the provincial legislature. In his Arguments Offer’d to the Right Honourable Lords Commissioners for Trade & Plantation, Montague contended that the Crown had no legitimate claim to New York lands held by private settlers who owned the contested land by virtue of having mixed their labor with it or purchased it from Native American tribes (e.g., the Mohawks). Citing Locke, whom he describes as “a very worthy and learned Author,” Montague quotes directly from the Second Treatise to the effect that a just government “cannot take from any Man any part of his Property without his own consent.” Then, paraphrasing Locke, Montague notes that the “great motive and inducement” for individuals “to unite themselves into Politick Societies, and to submit to Government, was the Preservation & Protection of their Properties, and rendering them more certain and secure than they could be in a state of Nature.”1 What is important about Montague’s position is that his Lockean philosophy largely explained the lived experience of colonial Americans in the seventeenth and early eighteenth centuries.
In 1744, Elisha Williams, the Connecticut pastor and jurist, openly presented the pure Lockean theory of a social contract grounded on consent in his pamphlet The Essential Rights and Liberties of Protestants. The work is a brilliant condensation of the key principles outlined in chapters 1–5 and chapter 9 of Locke’s Second Treatise. Offering “a short sketch of what the celebrated Mr. Locke in his Treatise of Government has largely demonstrated,” Williams begins his pamphlet with a thoroughly Lockean discussion of “the Origin and End of Civil Government.” Virtually replicating in toto Locke’s discussion of man in the state of nature (but with his own emendations), Williams notes what “Reason teaches,” namely, that “all men are naturally equal in respect of jurisdiction or dominion one over another.”2 For Williams, as for Locke, reason first identifies a fact of human life.
The fact of human equality leads to a second fact connected to human nature: man has been given “an understanding to direct his actions,” which means he also has a “freedom of will and liberty of acting.” Williams identifies three attributes of human nature—reason, equality, and free will—that serve as his philosophic starting point, which can be restated as follows: all men have reason to guide their free will. Williams makes the point this way: “For the freedom of man and liberty of acting according to his own will (without being subject to the will of another) is grounded on his having reason, which is able to instruct him in that law he is to govern himself by, and make him know how far he is left to the freedom of his own will. So that we are born free as we are born rational.” Williams induces a core moral principle from these facts: men have moral rights by nature. All men, he notes, have “an equal right to their preservation,” which means “to such things as nature affords for their subsistence.” The natural rights to life and liberty lead logically to the right of property, which is born of self-ownership:
And every man having a property in his own person, the labour of his body and the work of his hands are properly his own, to which no one has right but himself; it will therefore follow that when he removes any thing out of the state that nature has provided and left it in, he has mixed his labour with it and joined something to it that is his own, and thereby makes it his property. He having removed it out of the common state nature placed it in, it hath by this labour something annexed to it that excludes the common right of others; because this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough and as good left in common for others. Thus every man having a natural right to (or being the proprietor of) his own person and his own actions and labour and to what he can honestly acquire by his labour, which we call property; it certainly follows, that no man can have a right to the person or property of another: And if every man has a right to his person and property; he has also a right to defend them, and a right to all the necessary means of defence, and so has a right of punishing all insults upon his person and property.3
Following Locke, Williams’s moral claims are situated within the context of a metaphorical state of nature, which is that place where there is no civil government.
Williams next quotes Locke verbatim on the inadequacies of the state of nature, which lacks three things: (1) “an established known law received and allowed by common consent to be the standard of right and wrong,” (2) “a known and indifferent judge with authority to determine all differences according to the established law,” and (3) “a power to back and support the sentence when right, and give it due execution.” The state of nature’s inadequacies make civilized life impossible because not all men follow nature’s moral laws all the time. Thus the state of nature is reduced to a state of war. In order to remedy this untenable situation, men use their reason to figure out that they must bring some kind of order and stability to their common social life. Hence they come together through common consent, and their “reason” teaches them
to join in society, to unite together into a commonwealth under some form or other, to make a body of laws agreable to the law of nature, and institute one common power to see them observed. It is they who thus unite together, viz. the people, who make and alone have right to make the laws that are to take place among them; or which comes to the same thing, appoint those who shall make them, and who shall see them executed. For every man has an equal right to the preservation of his person and property; and so an equal right to establish a law, or to nominate the makers and executors of the laws which are the guardians both of person and property.4
Implicit in Williams’s recounting of man’s escape from the state of nature is the role played by consent, which is the philosophic linchpin in the transition between the state of nature and the state of political society.
While still living in the state of nature, men, through mutually expressed and shared reason, agree among themselves to give up and transfer to a constitutionally bound government certain natural powers, which are:
1st. The power that every one has in a state of nature to do whatever he judgeth fit, for the preservation of his person and property and that of others also, within the permission of the law of nature, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself (his person and property) and the rest of that society shall require.
And, 2. The power of punishing he wholly gives up, and engages his natural force (which he might before employ in the execution of the law of nature by his own single authority as he thought fit) to assist the executive power of the society as the law thereof shall require.
This consent to transfer these powers is and must be universal (those who do not consent are excluded from the new community), and, when agreed upon collectively, it creates a new form of sovereignty—the sovereignty of the people, which is the “fountain and original of all civil power.”5
The institution of government follows deductively, according to Locke and Williams, from the facts and principles derived from their shared account of human nature. To secure man’s rights—rights owned by each individual—is the raison d’être of government. Consent delivered through a social contract is the bridge linking man’s fundamental rights (which are insecure in the state of nature) with government, the sole purpose of which is to protect man’s rights. The consent of the governed is therefore the necessary principle that grounds the just powers of all legitimate governments. This means that government is not a naturally occurring phenomenon as it was for ancient thinkers such as Plato and Aristotle, but is a man-made artifact because it is based on human agreement and convention.
Locke’s theory of consent continued to define how colonial Americans in the 1760s and 1770s thought about questions of political legitimacy and the moral foundations of government. In 1766, Jonathan Mayhew, quite likely New England’s most influential minister during the years of the imperial crisis, delivered a powerful and influential sermon at Boston’s West Church in which he applied the moral core of the Lockean teaching to the Stamp Act. The aim of Mayhew’s lesson was to “express” what he took “to be the general sense of these colonies.” At the heart of his representation of American views was the Lockean moral premise that all men are “free-born,” which means they “have a natural right” to their own property unless they “have freely consented to part with it, either in person, or by those whom we have appointed to represent, and to act for us.” Consent was the bridge linking man’s natural rights with the actions of government. The right to self-ownership and therewith private property is, according to Mayhew, “declared, affirmed, and secured to us, as we are British subjects, by Magna Charta,” and any law that violates that fundamental right is “ipso facto null and void.” The principle of consent is built into and is an extension of the right to self-ownership, which means that legitimate governments may tax their subjects or citizens only with their express consent or through their representatives. To Mayhew and the Americans, the Stamp tax violated this basic principle, and thus reduced the colonists to a state of “perpetual bondage and slavery.” This state of vassalage, he continued, was seen when a people “are obliged to labor and toil only for the benefit of others,” or when the fruits of their labor can be “lawfully taken from them without their consent.”6
For colonial Americans, it was a self-evident truth that, as John Adams said, “the only moral foundation of government is, the consent of the people.” Likewise for them, the statement by Benjamin Church in his oration commemorating the Boston Massacre—“That state only is free, where the people are governed by laws which they have a share in making”—was axiomatic.7 The principle of consent and its relationship to taxation and representation had deep roots in English law. It was common during the 1760s for American newspapers to reprint the classic statements of English rights and liberties, such as Magna Carta (1215), the Petition of Right (1628), Edward Coke’s Institutes of the Laws of England (1628–44), and the Bill of Rights (1689) in their arguments against the Sugar, Stamp, and Townshend Acts and the claims of parliamentary sovereignty. In August 1767, the Boston Gazette reprinted these seminal documents along with William Molyneux’s The Case of Ireland Being Bound by Acts of Parliament in England, Stated (1698), which argued against Parliament’s authority to make laws for Ireland. The Boston Gazette editors then adapted Molyneux’s argument (Molyneux was a personal friend of John Locke’s) to the present situation in the colonies by simply substituting the word “America” wherever the word “Ireland” appeared. A few weeks later, the New-York Journal republished all of this same material from the Boston paper. The crucial concept from Molyneux adapted by the Americans to their situation was that of consent. “Consent only,” argued Molyneux and his American fans, “gives human laws their force.” The principle of consent is in turn grounded on the self-evident principle (which Molyneux borrows directly from Locke) that “All men are by Nature in a state of Equality, in respect of jurisdiction or Dominion,” a principle he thought “stands in Need of little Proof.” The fact of human equality implies the moral principle that no man “should be subordinate and subject one to another,” which leads to that “Right which all Men, claim, of being free from all Subjection to Positive Laws, till by their own Consent they give up their Freedom, by entering into Civil Societies for the common Benefit of all the Members thereof.” And from the principle of consent, argued the Americans via Molyneux, “depends the Obligation of all Human Laws.”8
Starting with the premise of consent, Molyneux and his colonial admirers then built the scaffolding of their case against parliamentary usurpation by using Coke’s defense of traditional English liberties as presented in the great English jurist’s Institutes of the Laws of England. The principle of consent was built into the very fiber of English common law. It was the birthright of every free-born English subject, they insisted, that men shall not be subject to laws to which they have not given their direct or indirect consent. Drawing on Coke, the Boston Gazette and the New York Journal argued that the principles and institutions of the common law apply to America, which means that the Stamp and Townshend Acts were “repugnant to all natural reason and equity.” Using the same arguments applied by James Otis in the writs of assistance case, Bostonians and New Yorkers argued that laws against natural reason and equity are laws against law, and thus void.
The moral logic of the American position was clearly marked out in the Molyneux reprints in the two newspapers, which declared with no sense of exaggeration that a people “bound by a Law to which [they] do not consent” are slaves. Consent is the only true and proper source of political legitimacy and obligation. For trans-Atlantic Whigs, there was a clear line to be marked in the sand:
The obligation of all laws having the same foundation, if one law may be imposed without our consent, any other law whatever, may be imposed on us without our consent. This will naturally introduce taxing us without our consent; and this as necessarily destroys our property. I have no other Notion of property, but a power of disposing my Goods as I please, and not as another shall command: Whatever another may rightfully take from me without my consent, I have no property in. To tax me without consent, is little better, if at all, than down-right robbing me.9
The Americans used this Lockean logic time and again during the imperial crisis. It was the core of their argument against Parliament. Indeed, it was the rare American argument that did not use it in some form. Typical was the writer in the Pennsylvania Gazette who wrote that Locke, with “much pregnancy of reason, developed the ends for which [men]” left the state of nature and entered into civil society, which was to protect their property—the property men have in their lives, liberties, and possessions. This American Whig declared, quoting from chapter 11 of Locke’s Second Treatise, that the “supream power cannot take from any man any part of his property, without his own consent.” The connection between property and consent was a moral absolute for the Americans. As the pseudonymous “Hampden” wrote from New York: “The chief End of all free Government, is the Protection of Property, from Injuries within and without it.” Property, he continued, “is here used in the Large Sense in which Mr. Locke uses it, as comprehending Life, Liberty, and Estate.”10
Why were the Americans so deeply committed to this Lockean understanding of property and consent? Why were they unwilling to compromise? In part, Locke’s reasoning both shaped and spoke to their deepest and most fundamental moral convictions. The American sense of life and the moral constitution that went with it were rooted in a system of beliefs that viewed right and wrong in black and white. Moral action rooted in a defense of the laws and rights of nature was viewed as a moral necessity for American Whigs of the revolutionary generation.
This line of reasoning can be seen clearly in Joseph Warren’s Boston Massacre oration, in which he reduced the constitutional issue of Parliament’s authority to tax the colonists to its moral common denominator. The Sugar, Stamp, and Townshend Acts, according to Warren, reduced the Americans into “absolute SLAVES,” who “have no property of [their] own” that is not subject to the “arbitrary commands of those over whom [they] have no controul or influence.” This degraded state puts their property “entirely at the disposal of another.” Thankfully, the Americans would not succumb, according to Warren, to voluntary abasement:
Such gross absurdities I believe will not be relished in this enlightened age: And it can be no matter of wonder that the people quickly perceived, and seriously complained of the inroads which these acts must unavoidably make upon their Liberty, and of the hazard to which their whole property is by them exposed; for, if they may be taxed without their consent even the smallest trifle, they may also without their consent be deprived of every thing they possess, although never so valuable, never so dear.11
The Lockean ethos explained the world in terms that made sense to the Americans. The Englishman’s moral reasoning and political principles were not just formulaic principles to be trotted out whenever the colonists found them useful. Locke’s moral logic cut to the core of the colonists’ sense of life; it gave voice to their deepest values and principles; and it also explained and justified the reality of life in America and how it had developed over time.
A few years later and in the wake of the Coercive Acts, Moses Mather, a direct descendant of one of New England’s most influential Puritan families, explained to his fellow Americans the philosophic foundations and meaning of the doctrine of consent. In his 1775 America’s Appeal to the Impartial World, Mather begins by asserting that man’s “Free agency” is synonymous with and reliant on his “rational existence,” which means that his “powers and faculties, and freedom of enjoying and exercising them,” are under the sovereignty of his rational faculties and will. Following Locke and his American students, Mather claims that all men are, morally speaking, entirely self-owning and self-governing; they “hath an absolute property in, and right of dominion” over their “powers and faculties,” including the fruits of their mental and physical labors. All men, he noted, stimulated by “self-love” and guided by “reason” in the “free use and exercise” of their various “powers and faculties,” have an absolute property claim to whatever they have freely chosen to create, acquire, or trade for. And no man, Mather continued, can be “divested” of his property “but by his own voluntary act, or consent, either expressed, or implied.” Likewise, when a man enters into a social compact to create a civil society with rules regulating property and contracts and a government to enforce those rights-protecting rules, he consents explicitly or implicitly to live by the laws created by that government. Consent, then, is the moral-political passkey by which man’s individual rights are recognized and protected. In free governments consent is embodied in the institution of political representation, which secures to each man a voice in making the laws that he must live by. The genius of the English system, according to Mather, was to have grounded its constitution and political institutions on “these first great principles of natures dictates,” thereby erecting a “system of civil government correspondent thereto.” And the core constitutional-political principle of the British government, which extended back in time over five hundred years to Magna Carta, was of course the principle of “no taxation without representation.” No man “could be deprived of [his] rights or properties but by [his] own consent in parliament, and no laws could be made, or taxes imposed, but such as were necessary, and in the judgment of the three estates in parliament, for the common good, and interest of the realm.”12
The principle of consent was at the heart of the Anglo-American moral, political, legal, and constitutional tradition, and it was in defense of this principle that American revolutionaries were eventually forced to take up arms. Thus, for Mather and the American Whigs in 1775, the entire question of the imperial crisis could be reduced to a single point:
Either the parliament hath no such power over the persons and properties of the Americans as is claimed, or the Americans are all slaves. Slavery consists in being wholly under the power and controul of another, as to our actions and properties: And he that hath authority to restrain and controul my conduct in any instance, without my consent, hath in all. And he that hath right to take one penny of my property, without my consent, hath right to take all. For, deprive us of this barrier of our liberties and properties, our own consent; and there remains no security against tyranny and absolute despotism on one hand, and total abject, miserable slavery on the other. For power is entire and indivisible; and property is single and pointed as an atom. All is our’s, and nothing can be taken from us, but by our consent; or nothing is our’s, and all may be taken, without our consent.13
From the American perspective, Mather’s logic was simple and irrefutable. From the perspective of American and British Tories, it was incomprehensible.
The power of Locke’s logic and the principles it conveyed via Williams and others were planted deeply and broadly in American soil. In the five-and-a-half decades between 1720 and 1776, Lockean moral and political philosophy was baked into the American psyche. Locke’s arguments and those of his best American students were repeated countless times in the colonies, particularly in the years after 1764. It is easy to see how and why a culture that had become thoroughly imbued with these kinds of ideas by the 1760s would respond to the Stamp Act as it did. Psychologically, Locke’s philosophy served as a kind of early warning system alerting these Anglo-American provincials to even the slightest threat to their liberties and rights. The genesis of the American mind begins with John Locke.
CONSENT IN PRACTICE: THE IMPERIAL CRISIS
The American Revolution began at a time when the colonists were among the wealthiest and freest people anywhere in the world. They were also loyal subjects of the Crown, and they reveled in their Englishness. However, Parliament’s passage of the Stamp Act in 1765 struck the colonists like a thunderbolt. It was a shock to their moral sensibilities, and it crystallized ideas that had been seeping into the American consciousness for several decades.
The colonists were certain that Parliament did not have the authority to tax them for purposes of raising revenue. They assumed their customary rights were protected by the British constitution and its core principle, according to which only their elected representatives could tax them. On a deeper level, American resistance to the Stamp Act and later to the Townshend, Tea, and Coercive Acts was a response to unjust acts of power deemed arbitrary and potentially without limit. The Stamp Act unleashed a torrent of rebuke, much of it in a moral idiom that spoke, remarkably, of tyranny and slavery. The first convulsion of the American rebellion thus did not occur for economic or even for political reasons. It was primarily a moral uprising against political legislation passed by the British Parliament. The colonists had every reason, certainly every political and economic reason, to want to resolve this controversy as quickly as possible. Instead, they precipitated first a moral and then a political revolution that would turn the greater Britannic world upside down.
Though the Americans viewed the Stamp Act as unprecedented, they did have a foreshadowing of the coming storm the year before when Parliament passed the Sugar Act, which cleverly cut in half Britain’s duty on imported foreign molasses into the colonies. The problem with this new postwar legislation is that it created new enforcement mechanisms, the purpose of which was not to direct trade but to raise revenue to help defray the costs of maintaining a new imperial bureaucracy and an increase in Britain’s military presence in America. The Sugar Act was an ominous signal to the Americans. They viewed it therefore with concern and skepticism.
The colonists believed there was a necessary connection between taxation and representation, property and consent. Their Lockean moral logic taught them that what a man has honestly acquired through his own mental and physical labor cannot be taken from him without his consent. They believed this principle to be the most important guarantee of English liberty extending back to the time of Magna Carta and beyond. Furthermore, all Americans agreed with their British cousins that the “Right to legislate is originally in every Member of the Community.”14 It was the core principle of British constitutionalism. The problem was in determining how to extend the principle of consent to a political community of more than a few hundred people living in close proximity to one another. In other words, how does one ensure the consent of the governed given the impossibility of convening all the people all the time?
The great discovery and development of representation by the Saxons in the five centuries before Magna Carta was the uniquely English solution to the problem of converting the individual consent of all into the very practical need for just a few to design just laws. The Americans told themselves time and again throughout the 1760s and 1770s, “Representation is the feet on which a free government stands.”15 It was the foundational principle of the British constitution that united all Britons and all Americans. Tragically, it was also the primary principle that divided them during the years of the imperial crisis.
For trans-Atlantic Britons, property and liberty had been linked as one for centuries. For subjects of the realm, Parliament was their representative body and thus was the only legitimate authority to tax their property. But virtually no one in America presumed that Parliament’s authority to tax extended to the colonists’ property. For almost 140 years, the colonists had taxed themselves in their local assemblies, which they claimed as a fundamental right and not as a privilege. According to one writer in New York’s Constitutional Gazette, “it has been the established and unimpeached practice, ever since the foundation of the British Empire in America, for the King to make requisitions for supplies to the provincial representatives, and levy taxes by the authority of the provincial legislatures.” The Americans claimed they were prepared to “contribute towards the expenses of the state,” but the real question came down to “how they [were] to contribute, whether they [were] to be taxed by their own representatives, or by representatives chosen by the people of Great-Brtiain.” From the provincials’ perspective, their local assemblies were the equivalent of Parliament with regard to taxes, which meant that only their elected representatives could tax them. But now Parliament was attempting to tax them through the Sugar Act, as the New York Assembly claimed, “upon the subjects here, by Laws to be passed there.” The Americans searched the historical record for a precedent but could find none. History, they insisted, “can furnish” no “Instance of a Constitution to permit one Part of a Dominion to be taxed by another, and that too in Effect, but by a Branch of that other Part.”16
In a forceful petition sent to the House of Commons in 1764, the New York Assembly claimed a total exemption from parliamentary taxation. The New Yorkers insisted that “the People of this Colony, inspired by the Genius of their Mother Country, nobly disdain the thought of claiming that Exemption as a Privilege.—They found it on a Basis more honourable, solid and stable; they challenge it, and glory in it as their Right.” They claimed this right by virtue of being Englishmen but also as a natural right: “An exemption from the Burthen of ungranted, involuntary Taxes, must be the grand Principle of every free State.—Without such a Right vested in themselves, exclusive of all others, there can be no Liberty, no Happiness, no Security; it is inseparable from the very Idea of Property, for who can call that his own, which may be taken away at the Pleasure of another?” This right, they continued, is “the natural Right of Mankind.” It was established
in the first Dawn of our Constitution, founded upon the most substantial Reasons, confirmed by invariable Usage, conducive to the best Ends; never abused to bad Purposes, and with the Loss of which Liberty, Property, and all the Benefits of Life, tumble into Insecurity and Ruin: Rights, the Deprivation of which, will dispirit the People, abate their Industry, discourage Trade, introduce Discord, Poverty, and Slavery; or, by depopulating the Colonies, turn a vast, fertile, prosperous Region, into a dreary Wilderness; impoverish Great-Britain and shake the Power and Independency of the most opulent and flourishing Empire in the World.”17
The Americans’ concern became outrage a year later with passage of the Stamp Act, which imposed taxes on a variety of legal and commercial documents. The new tax required the colonists to purchase officially stamped paper sent from the central stamp office in London to be sold in the colonies by Crown-appointed local agents. The colonists immediately saw the burden of the new tax: they would now be required to pay stamp fees to conduct the ordinary business of life: for wills and contracts at every stage of a lawsuit, for leases, deeds, diplomas, land grants, mortgages, insurance policies, customs papers, almanacs, pamphlets, and newspapers, and even for dice and playing cards. The stamp tax affected nearly all areas of economic life. And it came with heavy fines for those who violated the law. Even worse, violators would now be tried in admiralty courts without jury trials. More fundamentally, the colonists saw the Stamp Act as an assault on their private property because it taxed them without their consent: if Parliament could levy and collect this tax, there was seemingly no limit to what it might demand in the years ahead.
News of the Stamp Act reached America in April 1765. Patrick Henry sparked the American response the following month, when he introduced a series of resolutions in the Virginia House of Burgesses denouncing parliamentary taxation in America. Henry’s first two resolutions simply asserted the right of all Virginians to their traditional British liberties, privileges, and immunities as guaranteed by common law and their royal charter. His third resolution announced the principle that taxation and representation were indissolubly linked in the ancient British constitution, calling this principle the “distinguishing Characteristick of British Freedom.” The fourth resolution declared that Parliament had no right to legislate for the colonies. Henry’s final resolution completed the third: it resolved that the “General Assembly of this Colony have the only and sole exclusive Right and Power to lay Taxes and Impositions upon the Inhabitants of this Colony.” Attempts to place that power elsewhere, he argued, have “a manifest Tendency to destroy British as well as American Freedom.”18
The Burgesses eventually dropped Henry’s fifth resolution, passing the first four in slightly revised form. (Henry is alleged to have had two even more radical resolutions at the ready in his pocket.) Henry was not finished, though. Adding fuel to his fire, he accompanied his resolutions with something more than a lèse-majesté of the king: “Tarquin and Ceasar each had his Brutus, Charles the First his Cromwell,” Henry thundered, and then he crossed the line into treasonous territory when he suggested that he doubted not “that some good American would stand up” to George III “in favor of his country.” Interrupted by cries of treason, Henry is alleged to have retorted: “if this be treason, make the most of it.”19 It was an electric and unforgettable moment. The young Thomas Jefferson, who attended the House of Burgesses that day, declared that Henry appeared to “to speak as Homer wrote.” Years later, Jefferson also noted that the passage of the Virginia Resolves “may be considered as the dawn of the revolution.”20
Henry’s resolutions lit a fuse up and down the Atlantic seaboard. Ironically, though not approved by the Virginia Burgesses, all seven of Henry’s resolutions (including the two he did not present) were printed in the other colonies as though the Virginians had in fact passed all of them. The sixth resolution boldly declared that Virginians were not legally obliged to obey laws not passed by their legislature (surely a call for civil disobedience), and the even more radical seventh resolution declared that individuals who supported the right of Parliament to tax the colonies were traitors to the colony of Virginia. From the beginning, the American position that emerged in 1765 was latent with revolutionary intent.21
Virtually every colonial assembly followed Virginia’s lead by issuing a series of resolutions in response to the Stamp Act as did the continent-wide Stamp Act Congress, all of which bore a remarkable similarity to Henry’s first five resolutions. In fact, the colonists responded to the Stamp Act with arguments that would carry them through all the way to the Declaration of Independence. The most interesting characteristic of these statements is that none were concerned with the tax per se. They all opposed the authority of Parliament to tax the colonies in any amount on moral and constitutional principles. The Pennsylvania Resolves declared that “the Constitution of Government in this Province is founded on the natural Rights of Mankind, and the noble Principles of English Liberty, and therefore is, or ought to be, perfectly free.” The Stamp Act was, according to Pennsylvania legislators, a direct violation of those fundamental moral principles. Likewise, the Massachusetts Assembly declared that there are “certain essential Rights of the British Constitution of Government, which are founded in the Law of God and Nature, and are the common Rights of Mankind,” and thus the people of the Bay Colony are, the Assembly continued, “unalienably entitled to those essential Rights in common with all Men: And that no Law of Society can consistent with the Law of God and Nature divest them of those Rights.”22
Building on these fundamental moral principles, the Massachusetts legislature went on to declare that the British constitution and the colonial charters guaranteed to all British subjects that “no Man can justly take the Property of another without his Consent: And that upon this original Principle the Right of Representation in the same Body, which exercises the Power of making Laws for levying Taxes, which is one of the main Pillars of the British Constitution, is evidently founded.” The Pennsylvania, Maryland, Connecticut, South Carolina, and New Jersey resolves all declared that no man can be taxed without his consent as a right of nature and of Englishmen. Translated historically and politically, this fundamental right not to be taxed without one’s consent was “Granted by Magna Charta,” declared the Maryland Assembly, and “Confirmed by the Petition and Bill of Rights.” Finally, the American position was ably summed up in 1765 in “The Declaration of the Stamp Act Congress,” which announced that “it is inseparably essential to the freedom of a people, and the undoubted rights of Englishmen, that no taxes should be imposed on them, but with their own consent given personally, or by their representatives.”23
Collectively, these statements from the colonial assemblies and the Stamp Act Congress express the state of the American mind in 1765. From the very beginning, the rallying cry “no taxation without representation” was a nonnegotiable principle for the Americans as it was based on the fundamentals of their beloved British constitution and, more importantly, on the unalienable rights of nature. From this position, the colonists would not budge over the course of the next eleven years.
The Stamp Act triggered a full-scale debate in Britain and America over the extent of parliamentary authority in the colonies. The specific constitutional issue dividing the Britannic world for the next ten years concerned the authority of Parliament to tax the colonies, and, more generally, its authority to legislate for the colonies, as the Declaratory Act of 1766 put it, “in all cases whatsoever.” In either case, the contest between Great Britain and America concerned the twin principles of consent and representation. The principle of consent and its application to government and politics in the form of the slogan “no taxation without representation” was more than just a rallying cry in 1765. To repeat: it was a fundamental principle of the British constitution extending back to Magna Carta, and it was held dearly even by those men who supported the Stamp Act. All Britons, regardless of which side of the Atlantic they lived on, held this principle as a pillar of British constitutionalism. In the end, the divide between mother country and colonies in 1765 came down to one question: Were the colonies represented in Parliament? The answer to this question was not so obvious. One thing, however, was clear to the Americans, said Alexander Hamilton: “The foundation of the English constitution rests upon this principle: that no laws have any validity or binding force without the consent and approbation of the people, given in the persons of their representatives, periodically elected by themselves.”24
British defenders of parliamentary sovereignty assumed that the colonists were represented in Parliament. The most sophisticated British argument defending the Stamp Act came from its principal author, Thomas Whately, a confidant of Prime Minister George Grenville.25 At Grenville’s urging, Whately quickly wrote and rushed into print his pamphlet The Regulations Lately Made, which was a full-throttled defense of both the Sugar and Stamp Acts. Whately answered those American writers who argued against the Stamp Act and the constitutionality of parliamentary taxation. He made clear that he supported the principal that no Englishman can be taxed without the consent of his representative, which he regarded as a palladium of British liberty. “No new Law whatever can bind us,” he declared, “that is made without the Concurrence of our Representatives.” But according to the “Principles of our Constitution,” he claimed, the colonists were represented in Parliament. They may not choose their representatives, but the fact is that “Nine Tenths” of the inhabitants of Great Britain did not have the franchise. Wealthy London merchants and the inhabitants of major cities such as Leeds, Halifax, Birmingham, and Manchester could not vote, while uninhabited “rotten boroughs” such as Old Sarum sent a representative to Parliament. Because of the peculiarities of the British electoral system, the vast majority of Britons did not vote and yet were nevertheless represented in Parliament.26
This notion of representation—what was called virtual representation—assumed that all Britons everywhere were a single people united as a homogenous whole by common values and interests. It did not matter whether one voted for a representative or not because all laws made by Parliament affected electors and nonelectors in the same ways. All Britons—voters and nonvoters, Londoners and Bostonians—shared a common political heritage that was embodied in the principles of the British constitution. The most celebrated articulation of virtual representation was Edmund Burke’s letter to his Bristol constituents in 1774, wherein he argued that Parliament was not a congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole, where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole.” Under the principle of virtual representation, the role of a legislator was not to re-present the views of those who elected him but to deliberate on the interests of the nation or empire as a whole.27
Working implicitly with this conception of virtual representation, Whately argued that the colonists were in exactly the same situation as nine-tenths of those Britishers who could not vote. Indeed, there was no fundamental difference between a nonvoting Englishman and an American. These New World provincials were, by Whately’s account, “an important Part of the Commons of Great Britain: they are represented in Parliament in the same Manner as those Inhabitants of Britain are, who have not Voices in Elections: and they enjoy, with the Rest of their Fellow-subjects the inestimable Privilege of not being bound by any Laws, or subject to any Taxes, to which the Majority of Representatives of the Commons have not consented.”28 For this reason, he argued, the Stamp Act is constitutional precisely because the British Parliament virtually represents all Britons everywhere, and thus it is an expression of common consent. Whately had to work very hard to make this claim believable to the Americans.
American Whigs found Whately’s argument for “virtual” representation specious. The most impressive American argument against virtual representation was Daniel Dulany’s best-selling pamphlet, Considerations on the Propriety of Imposing Taxes in the British Colonies, for the Purpose of Raising a Revenue (1765). Dulany, an English-educated (Eton, Cambridge, and Middle Temple) lawyer from Maryland, began his response to Whately by examining the historical relationship between consent, taxation, and representation in the British constitution. Taxation had been throughout British history, he argued, a freely given “gift” time out of mind from the people to their representatives in the House of Commons. The constitutionality of the Stamp Act therefore rested on a single question: “Whether the commons of Great Britain are virtually the representatives of the commons of America or not?” By “what right,” Dulany asked, had the British people and their representatives in Parliament to “be munificent at the expense of the commons of America?” As a matter of general principle, he countered, it is a “flagrant injustice” to “give property not belonging to the giver, and without the consent of the owner.”29
Dulany then reconstructed and deconstructed the argument for virtual representation. The problem was that its proponents had not “defined, or precisely explained what they mean by the expression, virtual representation.” Instead, he argued, they simply asserted it in “fanciful” language as though presumptively true when in fact it was disconnected from reality. As best he could tell, the argument for virtual representation could be reduced to three claims: first, British nonelectors have the capacity to become electors by acquiring freehold property; second, there was an identity of interests between British electors (one-tenth of the British population) and nonelectors (nine-tenths of the British population); and third, nonelectors were secure from oppression because the elected must live by the laws they make. Thus, the argument went, members of Parliament represent all Britons whether they are elected by all of them or not. Dulany summed up what he called the “only rational explanation” for virtual representation this way: “Under this constitution then, a double or virtual representation may be reasonably supposed. The electors, who are inseparably connected to their interests with the non-electors, may be justly deemed to be the representatives of the non-electors, at the same time they exercise their personal privilege in the right of election; and the members chosen, therefore, the representatives of both.” Dulany rejected these arguments as little more than a “mere cob web, spread to catch the Unwary, and intangle the weak.”30 He conceded that the flawed concept of virtual representation might apply to the local circumstances of Great Britain, and it might even be a salutary institution there, but it simply could not apply to the American colonies. To do so would be to sanction an absurdity, he argued. The difference between British and American nonelectors was one of kind and not one of degree.
Dulany then offered three reasons why virtual representation could not apply to the colonies. First, it was impossible under the current system for the colonists to become electors to the House of Commons even if they owned the requisite freehold property. Second, there was and could be no identity or harmony of interests between the commons in Britain and in America. They were places and peoples separated by more than three thousand miles of ocean. It may once have been true that there was a harmony of interests between Britons on both sides of the Atlantic, but those days were gone. “There is not that intimate and inseparable relation between the electors of Great-Britain, and the Inhabitants of the colonies,” Dulany noted, “which must inevitably involve both in the same taxation.” Finally, it was possible and even likely that Parliament could pass tax legislation directed specifically at the colonies (e.g., the Stamp Act) that would not affect the electors in the realm who supported it. In other words, the former “might be oppressed in a thousand shapes, without any Sympathy, or exciting an alarm” in the latter. The conclusion for Dulany was obvious: “the notion of a double or virtual representation, doth not with any propriety apply to the people of America,” which of course means that “the principle of the Stamp act, must be given up as indefensible on the point of representation.” The Stamp Act was, therefore, an unjust act of “power” and a violation of the core principles of Britain’s ancient constitution.31
Following the Stamp Act, the colonists developed a different understanding of representation. They assumed that all legitimate government rests on the direct and actual consent of the governed, which was built on a tradition of political representation that had deep roots in their colonial past. The provincials combined the ideas of Locke with the reality of their lived experience. Their arguments gave expression to that which had already existed in fact. Almost from the moment the colonies were first founded and then over the course of the next 150 years, the Americans had developed an understanding of representation very different from that of their British cousins. Local conditions unique to the colonies led the Americans to believe that the people “must be represented actually—not ‘virtually,’” which meant they must be “consulted in the most particular manner that can be imagined.”32 Ironically, the American view of representation had more in common with a much older, pre-feudal conception of the relationship between constituents and representatives.33
The Stamp Act directly threatened the Americans’ understanding of consent, which is why they reacted to it with such immediate ferocity. For the colonists, taxes constituted a special form of legislation that required ongoing and direct consent. Because they were not represented in the British Parliament, the colonists did not recognize the right of any political body other than their own legislatures to tax them. Parliament had “no right to tax the Americans any more than they have to tax the inhabitants of France,” declared an anonymous writer in the Massachusetts Spy. The Americans mocked ruthlessly the idea that “members of the British Parliament” could be “representatives of the whole British Empire.” According to the colonists, the principle of virtual representation contradicted the “avowed principles” of true English Whigs, namely, that “Property and residence within the Island, alone [constitute] the right of election.” The idea of virtual representation was, according to Benjamin Church, “futile and absurd” and could be taken as nothing more than the “Idea of a political visionary.” It was ludicrous, he continued, to suggest that an “unlettered British Elector,” who was “possessed of a turnip garden,” should have the power to “appoint a legislator, to assess the ample domains, of the most sensible opulent American planter.” Church refused to recognize virtual representatives “in whose nomination or appointment I have no choice.”34
The great English abolitionist Granville Sharp supported the American position on representation and taxes. In A Declaration of the People’s Natural Right to Share in the Legislature (printed four times in America during the imperial crisis), Sharp argued that the inequality of representation in Great Britain could provide “no just argument for setting aside the Representation of the people in other parts of the British empire.” The fact is that Britain’s colonies had no representation in Parliament, including virtual representation. Sharp was one of the few English writers who grounded his theory of representation on underlying moral principles. “No tax can be levied,” he argued, “without manifest robbery and injustice where his legal and constitutional Representation is wanting; because the English law abhors the idea of taking the least property from freemen without their free consent.” Such a law is “iniquitous,” which means that it “can never be made lawful by any authority on earth; not even by the united authority of King, Lords, and Commons.” For Sharp, the political-constitutional principle was simple: “In every point of view, the making laws for the subjects of any part of the British Empire, without their participation and assent, is iniquitous, and therefore unlawful.” Sharp joined with American Whigs in rejecting the British presumption that the Stamp Act might be unjust but constitutional because it was legal. Sharpe and his American allies argued that the Stamp Act was unconstitutional precisely because it was unjust. His argument is worth quoting at length:
For if the inhabitants of one part of the empire might determine a question, or enact a law, for the peculiar advantage only of that one part, though to the manifest detriment and injury of another part, without the Representation of the latter, the former part would be made judges in their own cause, a circumstance that would be literally partial! the very reverse of justice and natural equity, and which must, therefore, be esteemed iniquity, even to a fundamental maxim, viz. it is iniquitous for any one to be a judge in his own cause. Partiality is, therefore, such an abomination in the eye of the law, that no power on earth can make it lawful; for “even an Act of Parliament” (says the learned Judge Hobart, Rep. 87.) made against natural equity, as to make a man judge in his own case, … is void in itself; for jura naturae sunt immutabilia [the laws of nature are immutable], and they are leges legum [law of laws].35
A violation of the Lockean principle of consent and the moral principles on which it rested, the Stamp Act also violated the English constitution’s most basic conceptions of justice and the rule of law. For the Americans, it violated every moral, political, and constitutional ideal they held dear. Thus, as one American writer argued, it was “the duty of every loyal subject, of every honest man, to treat the authors, aiders and abettors of such ruinous, illegal and unconstitutional usurpations, as traitors and public enemies.”36
Faced with this fervid backlash, Parliament repealed the Stamp Act less than a year after it was passed. Still, British politicians could not resist trying to invent new ways to tax the colonies in the succeeding years, forcing the Americans to deepen their views on the nature and meaning of consent and representation. One such response came from Silas Downer of Providence, Rhode Island, who stated with admirable clarity the American case on the role of consent within British constitutionalism:
It is of the very essence of the British constitution, that the people shall not be governed by laws, in the making of which they had no hand, or have their monies taken away without their own consent. This privilege is inherent, and cannot be granted by any but the Almighty. It is a natural right which no creature can give, or hath a right to take away. The great charter of liberties, commonly called Magna Charta, doth not give the privileges therein mentioned, nor doth our Charters, but must be considered as only declaratory of our rights, and in affirmance of them.37
The principle of consent and all the moral principles contained in it are not given to men as gifts by government but are inherent in man’s nature and then are discovered and declared by government.
The following year, Georgia’s leading spokesman in the dispute with Great Britain, John Joachim Zubly, wrote and published one of the clearest pamphlets defending the American position against the Declaratory and Townshend Acts. In his An Humble Inquiry into the Nature of the Dependency of the American Colonies upon the Parliament of Great-Britain and the Right of Parliament to Lay Taxes on the Said Colonies, Zubly reminded his readers that “taxes are a free gift of the people to the crown,” which means “the crown hath no right to them but what is derived from the givers.” By viewing taxes as a gift, Zubly began with the individual and not Parliament as the primary unit of moral and political value. This means the individual must determine and freely choose why and when the government deserves his endowment and how much. On the principle that “no man can give what is not his own,” the British constitution has, with the consent of the people, transferred the taxing authority to the House of Commons. That power, however, is neither unlimited nor universal. It must meet certain conditions, the most important of which is that individuals be actually or virtually represented in the House of Commons. According to Zubly, “it seems to be a prevailing opinion in America, that to be taxed without their consent, and where they are not and cannot be represented, would deprive them of the rights of Englishmen, nay, in time, with the loss of the constitution, would deprive them of liberty and property altogether.”38
For the Americans, there was no legitimate taxation without representation, and there was no representation without the people’s actual consent (direct or indirect). This view was not new. It expressed, systematized, and gave a moral sanction to a reality that had been developing in the colonies since their foundings in the seventeenth century.
In addition to the problem of taxation and representation, colonial Whigs used the doctrine of consent in a second important way during the years of the imperial crisis. The theoretical and practical problems first raised by the Declaratory Act forced America’s best minds to reconceptualize the nature of the constitutional relationship between the mother country and the colonies. More precisely, American thinkers sought to disconnect any relationship (other than trade) between the colonies and the British Parliament. To that end, in the seventeenth-century political foundings of various American colonies they rediscovered historical laboratories in which to observe the proper legal relationship between the provinces and the mother country. America’s most perceptive intellectuals discovered in the original colonial charters decisive evidence that the provinces were built on something like a Lockean social contract that bound the colonies to the mother country through a personal relationship with the king. Two of the most insightful and original American essays in this vein were Richard Bland’s Inquiry into the Rights of the British Colonies (1766) and John Adams’s Novanglus letters (1774–75). Bland and Adams articulated what might be called a disguised Lockeanism, one veiled in the more traditional language of English constitutional jurisprudence.
In his pamphlet, Bland presented the most original American argument on this count to emerge before 1774.39 He made clear that it would be “in vain to search into the civil constitution of England for directions in fixing the proper connection between the colonies and the mother-kingdom.” There was no case in the “ancient laws of the kingdom,” he wrote, that could account for the planting of new colonies by private citizens. English emigrants established colonies in America at their own expense in blood and treasure. The new colonies, he noted, were founded by “private adventurers,” who “established themselves, without any expense to the nation, in this uncultivated and almost uninhabited country.”40 The colonists were under no obligation to the mother country except those they chose of their own free will.
On what basis, then, were mother country and colonies associated? Bland’s answer turned to “the law of nature, and those rights of mankind which flow from it.” He thus transformed the historical founding of the colonies into a quasi-Lockean moment, when a company of New World adventurers found themselves in a state of nature, where all men “recover their natural freedom and independence.” When such men “unite and by common consent take possession of a new country, and form themselves into a political society,” they become members of a new sovereign state separate and distinct from the one they left. These New World settlers had vacated an existing state and settled in a place where there was no state, and hence were temporarily in a state of nature with all of the natural rights that come with it. Most importantly, they were now free to form new governments, which they did based on the consent of those locally assembled. The colonists formed social compacts first among themselves and then as a community with a sitting king in England in the form of their charters. The terms of these new social compacts “must be obligatory and binding upon the Parties.” Interestingly, Bland referred to these new social and charter compacts as “constitutions,” as the New World equivalents of “Magna Charta.” Ultimately, wrote Bland in his 1764 pamphlet The Colonel Dismounted, the American charters gave the colonists the right to govern themselves fully, which they had done “by a constant and uninterrupted usage and custom” for close to 150 years. This prescriptive right was legally recognized in English jurisprudence by Sir Edward Coke’s decision in Calvin’s Case, in which he ruled that colonial charters were compacts by which the king had granted colonists either “the laws of England or a power to make laws for themselves.” And just as every liberty-loving Englishman would defend the Magna Carta, so the American colonists would defend their local constitutions against any infringements, including those by their British cousins.41
By 1775, the most sophisticated American argument synthesizing Cokean constitutionalism and Lockean social contract theory was that of John Adams in the letters written under the pseudonym “Novanglus.”42 Adams built on Bland’s arguments, but he also teased out their more radical implications. The Novanglus letters were a systematic attempt to describe the origins, nature, and jurisdictional boundaries of the imperial constitution. The colonists’ political connection to Great Britain and their rights and liberties were derived, according to Adams, from two different sources: “the law of nature and the compact made with the king in our charters.”43 The fact of the matter, according to Adams, is that the colonies were discovered, explored, purchased, settled, and cultivated by free Englishmen who had exercised their Lockean right of free exit and self-government. The colonists did so, as Locke put it, by “withdrawing themselves, and their obedience, from the jurisdiction they were born under, and the family or community they were bred up in, and setting up new governments in other places.”44 When a subject left the realm with the king’s permission, “he carried with him as a man all the rights of nature,” Adams argued. Indeed, English liberties were nothing but “certain rights of nature reserved to the citizen by the English constitution,” which cleaved to the colonists when they left England.45
The early history of the Plymouth colony provided Adams with an instructive example of how the colonies were founded on the laws of nature:
The first planters of Plymouth … had no charter or patent for the land they took possession of, and derived no authority from the English Parliament or Crown, to set up their government. They purchased land of the Indians, and set up a government of their own, on the simple principle of nature, and afterwards purchased a patent for the land of the council at Plymouth, but never purchased any charter for government of the Crown, or the King: and continued to exercise all the powers of government, legislative, executive and judicial, upon the plain ground of an original contract among independent individuals for 68 years.46
The colonies were first founded through a social compact among freely consenting individuals and then through a second compact in the form of charters, which established a political and personal relationship between the colonists and their king. The charters were to be treated with the same solemnity that Edward Coke had given the Magna Carta—that is, not as a “new declaration” but rather as “declaratory of the principall grounds of the fundamentall Laws of England.” The colonists, using terms that might have been borrowed from James Otis’s Rights of the British Colonies Asserted and Proved, had established their charters in a manner commensurate with the principle jus dicere (to declare the law) rather than jus dare (to make the law). In other words, their charters declared and embodied the laws of nature.47
English laws—statutory or common—did not therefore bind the Americans, excepting those laws to which the colonists had consented (e.g., Parliament’s regulation of trade within the empire) and that they agreed to live by. The colonists, Adams said, had a “right by nature” to establish English common law or any other law system in America as long as it was not inconsistent with their professed allegiance to the king. Those who discovered and founded the American colonies could begin tabula rasa, he said, with “eternal reason, and the law of nature” as the basis of their constitutional and legal codes. The first colonists could have “erected in this wilderness a British constitution, or a perfect democracy, or any other form of government they saw fit.”48 From the beginning, the colonies were independent of Parliament and were self-governing realms in their own right. The charters therefore defined the relationship between king and colonists.
This argument from the charters took on a special importance in Adams’s mind. By casting the colonists’ expatriation from England and first settlement in America in Lockean terms, Adams seemed to be saying that the charters represented an original social contract. In other words, these social compacts were more than pactum subiectionis; they were also pactum societatis.49 The bonds that tied individuals together in these new communities were contractual and volitional as opposed to natural and perpetual. Then, in a subtle move, Adams trimmed the colonists’ allegiance to the king from one grounded on Coke’s quasi-medieval teaching in Calvin’s Case to one squarely within the radical social-contract tradition of Locke’s Second Treatise. He summarized his final teaching in this way:
There is no provision in the common law, in English precedents, in the English government or constitution, made for the case of the colonies. It is not a conquered but a discovered country. It came not to the king by descent but was explored by the settlers. It came not by marriage to the king but was purchased by the settlers of the savages. It was not granted by the king of his grace, but was dearly, very dearly earned by the planters in the labor, blood, and treasure which they expended to subdue it to cultivation. It stands upon no grounds, then, of law or policy, but what are found in the law of nature, and their express contracts in their charters, and their implied contracts in the commissions to governors and terms of settlement.”50
Ingeniously, Adams conflated a historical argument about the founding of the colonies with a theoretical claim about natural rights and consent. In sum, American Whig thinkers were now Lockeanizing their argument against the claims of British imperial officials.
The American theory of consent culminated with Tom Paine’s incendiary Common Sense, published in early 1776. For Paine, the constitutional debate over the imperial constitution was finished. The time had come for the Americans to sever their ties with Great Britain and to establish new governments on the simple principles of nature. Paine thus begins his manifesto with an account of the origins of government. Following in the Lockean tradition, he posits that “Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins.”51 Paine, more than any other American thinker, drew a radical distinction between society (mostly good) and government (mostly bad). Society, he argued, is a voluntary association produced by man’s naturally occurring social passions and virtues and is united by his affections, whereas government is an artificial institution produced by man’s wickedness and vices and is united by commands and coercive power.
Man’s fallible nature makes government a “necessary evil” for Paine, one that man creates in order “to supply the defect of moral virtue.” Cooperating and consenting individuals in the state of natural liberty and civil society eventually find “it necessary to surrender up a part of [their] property to furnish the means for the protection of the rest.” Prudence dictates, Paine concludes in good Lockean fashion, that “security being the true design and end of government, it unanswerably follows, that whatever form thereof appears most likely to insure it to us, with the least expense and greatest benefit, is preferable to all others.”52 Protecting man’s security, liberty, and property constitutes the end of government for Paine, and the particular form of government best suited to those purposes is one that is small in size and miserly in its expenditures. Paine’s theory of government thereby extended Locke’s argument by suggesting that government exists solely to promote and protect the freedom associated with man’s natural condition.
The phenomenal success of Common Sense in America can be explained by the fact that Paine’s separation of society and government described an actual social reality being lived by many people in the colonies. This was particularly so in western Massachusetts, where there was no legally functioning government for almost six years, between 1774 and 1780. Paine’s view of natural society provided nervous patriots with a positive model of what was possible should they decide to declare their independence from Great Britain, and it calmed the fears of moderates that anarchy and disorder would necessarily follow from the dissolution of the empire.
Finally, Common Sense was the first truly revolutionary pamphlet published before the Declaration of Independence. Unlike the pamphlets of Otis, Bland, Dulany, Dickinson, Wilson, Jefferson, and Adams, Common Sense was not trapped in the categories of eighteenth-century English jurisprudence, and it did not need to describe the historical conditions of the colonies’ first foundings. Instead, Paine begins with a theoretical state of nature that described an extant American frontier life. Paine uses Locke to describe the actual conditions on the ground; he transports Locke to America and infuses his ideas into the American political discussion, making them part of the language of American political life. From this point forward, Locke’s theory of consent would be used to construct new governments rather than dismantle old ones.