THE theory of natural rights was already known to the Greeks; that of the sovereignty of the people was put forth frequently during ancient and mediæval times, and yet in Europe neither of these theories had given rise to a Declaration of the Rights of Man. Not even during the seventeenth century, when both these theories were in England held by the Levellers, by Milton, Sidney, Locke, and others, did such a declaration result.
The question naturally arises, Why did the Declaration originate in America?
The answer must be sought in the character, history, and peculiar conditions of the American colonists. Most of the colonists had been driven from their native land by political or religious oppression. They were men to whom their liberties were dear. They were mainly Englishmen, than whom no other people was more devoted to freedom. Furthermore, the time when they had emigrated was one of great ferment in England; a time when the spirit of opposition to the assertions of royal prerogative and to the encroachments upon popular rights made by autocratic kings was at its height. They held the most liberal religious and political views of their time. Many were Independents who opposed the union of Church and State and demanded liberty of conscience as a sacred right.
Their democratic principles of church government gave rise to a democratic political spirit.
Each congregation was a miniature republic, electing its pastor and church officers and, while independent of all others, having absolute control over its own affairs.
There were many other dissenters besides the Independents scattered throughout the colonies—Baptists, Presbyterians, Quakers, and others. This was a fact of great importance for the subsequent history of America. Religious liberty and political freedom have ever gone hand in hand. There is but a step from religious dissent to political opposition.
Men who had suffered persecution for their beliefs, who had braved the dangers of the sea, and had undergone the privations and sufferings incident to the settlement of a new and uncultivated land, were not likely to submit to oppression and infringement of their political liberties.
The colonists tried to procure the most liberal charters possible, and a large part of their early history relates to the attempts made to obtain such charters and to compel the enforcement of their stipulations after they had been secured.
All the colonies possessed their own local legislatures, although the early charters made no provision for such bodies.1
The colonists would not be subject to arbitrary power, but insisted upon having a share in making the laws by which they were governed. Without such participation in framing the laws there seemed to them to be no guarantee for political and civil liberty.
After the Restoration there was not a single colony in which the people were not represented in their colonial legislatures.2
While the right of the people to frame their laws was not questioned in the colonies having proprietary or charter government, this right was sometimes denied in the provincial governments by the Crown, which claimed the right to withdraw this privilege and to decide what number of representatives should be chosen and from what places. The Crown also claimed the right of dissolving the legislative body or continuing it indefinitely without a new election. To these claims of royal prerogative, except that of dissolving the legislature, the colonists opposed the most vehement resistance. Struggles took place repeatedly between them and the crown.3
The colonial legislatures claimed the exclusive right of regulating their own domestic and internal affairs, insisting especially upon voting their own taxes. A statute passed during the reign of George III. declared that the king, with the advice and consent of Parliament, “had, hath, and of right ought to have full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America in all cases whatsoever.”1
Since the colonies and the mother country were each determined to maintain the position taken, a conflict between them was inevitable.
While Parliament insisted upon its rights of making laws that were binding upon the colonies and of levying taxes upon them, the colonists stoutly resisted all such attempts as violations of their charter privileges and as infringements of their rights as Englishmen. Arbitrary taxation above all things was odious to them. As Burke said in his celebrated speech: “Here they felt the pulse of liberty, and as they found that beat they thought themselves sick or sound.”2
Inasmuch as representation in Parliament was impracticable for them, the colonists demanded that the colonial legislatures have the power of regulating the internal affairs of the colony and of levying taxes. They acknowledged their allegiance to the Crown, but they would not admit the controlling power of Parliament.3 They considered the colonial legislatures sovereign within their territory. They were composed of representatives of all the citizens of the colony.
The democratic nature of their political institution and the extent to which they enjoyed the right of self-government could not but breed in the colonists a love of freedom and of individual liberty.
The feeling of equality in the colonies was fostered by the general equality of economic and social conditions. There was no native nobility. There were no feudal customs. Land was held in fee simple. Estates were not entailed. The custom of primogeniture did not generally prevail. There was no dependent peasantry, nor were there great estates, except in Virginia. The feeling of caste was lacking. Being absolute owners of the soil and situated in independent and homogeneous circumstances, the colonists loved their liberties and were determined to offer resistance to any infringement of them.1
The main reason why the liberal principles whose development we have been tracing exerted so great an influence upon the American colonists and were so generally accepted by them, was because they found a basis in the institutions existing in the colonies and because of the historical development of these colonies.
The compact theory had an especial meaning to the colonists. It was the Congregationalist Church covenant applied to civil society. The congregation of John Robinson had entered into a covenant before leaving England for Holland.2 Before disembarking from the Mayflower those of that church who had come to America, drew up and signed a compact whereby they constituted a body politic. “We whose names are underwritten,” runs this famous agreement, “covenant and combine ourselves together into a civil body politic for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame just and equal laws, ordinances, acts, constitutions, and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, unto which we promise all due submission and obedience.”1 The colonists that settled at Salem in 1629 entered “into an holy covenant” whereby a Church-State was formed.2 The platform of Church Discipline of 1649, which continued in use for many years, declares the covenant to be the form whereby men “give up themselves unto the Lord, to the observing of the ordinances of Christ together in the same society,” and considers this the only way “how members can have church-power over one another.”3
That Puritanism gave rise to democratic political doctrines is shown by the fact that the first republicans in America were Puritan ministers, namely, Roger Williams, Thomas Hooker, and John Wise.
That remarkable work of a most remarkable man, the Bloudy Tenent of Persecution, written by Roger Williams in 1644, and sent to England as a plea for religious toleration, contains these memorable statements: “The sovereign, original, and foundation of civil power lies in the people; whom they must needs mean by ‘the civil power’ distinct from the government set up; and if so, that a people may erect and establish what form of government seems to them most meet for their civil condition. It is evident that such governments as are by them erected and established have no more power, nor for no longer time, than the civil power, or people, consenting and agreeing shall betrust them with. That is clear, not only in reason but in the experience of all commonweals, where the people are not deprived of their natural freedom by the power of tyrants.”1 Roger Williams says that “civil magistrates, whether kings or parliaments, states, and governors, can receive no more in justice than what the people give, and are, therefore, but the eyes and hands and instruments of the people.”2 He considers the object of government to be the commonweal or safety of the people in their bodies and goods.3 He holds that the people cannot entrust magistrates with any spiritual power in matters of religion, but only with a civil power belonging to their goods and bodies,4 and demands universal toleration and complete separation of Church and State.5
Even before this the doctrine of the sovereignty of the people had been put forth in the colonies by the Rev. Thomas Hooker, also a Congregationalist minister. In a sermon preached at Hartford, May 31, 1638, he had declared “that the choice of public magistrates belongs unto the people by God’s own allowance,” and that it is in the power of those who appoint officers and magistrates “to set bounds and limitations of the power and place unto which they call them.” In the sermon Hooker had asserted the foundation of authority to lie in the free consent of the people.6
In a letter to Governor Winthrop, Hooker wrote: “Reserving smaller matters, which fall in occasionally in common course, to a lower counsel, in matters of greater consequence, which concern the common good, a general counsel chosen by all to transact business which concerns all, I conceive . . . under favour most suitable to rule and most safe for relief of the whole.”1
The democratic ideas of Hooker and of Roger Williams found expression in the constitutions of the colonies with whose foundation they were associated.
The constitution of the United Colonies of Windsor, Hartford, and Wethersfield, drawn up in 1639, was based upon the doctrine of the sovereignty of the people. It was the first democratic constitution ever formed. The supreme power of the commonwealth resided in the general court whose members were elected by the freemen of the several towns. All magistrates were chosen by the whole body of the freemen. These magistrates were sworn into their office. The governor was required to swear “to promote the public good and peace” of the commonwealth.2
The Providence Plantations declared in the preamble to their Code of Law, drawn up in 1647, “that the form of government established . . . is democratical, that is to say, a government held by the free and voluntary consent of all or the greater part of the free inhabitants.”3
The democratic political principles of the Independents also found expression in the Constitution of Pennsylvania. Quakerism was but an offshoot of Independency. In America William Penn carried out his ideas of liberty of conscience and of political freedom. The humanitarian spirit of Quakerism is evident in the laws and institutions of the colony which Penn founded.
William Penn believed in Natural Law and in the sovereignty of the people. It was very probably from the Levellers that he adopted these theories. Lilburn, the head of the Levellers, spent much time with the Quakers during his last years.
Penn regards all laws as either fundamental and immutable, or superficial and alterable. By the first he understands such laws as enjoin men to be honest, just, virtuous; to do no wrong, to kill, rob, deceive, prejudice none, but to do as one would be done unto; to cherish good, and to terrify wicked men; in short, laws derived from Universal Reason. These laws he considers to be subject to no change. No emergency, time, or occasion can ever justify their suspension or abrogation. They “are as the corner-stone of human structure, the basis of reasonable societies, without which all would run into heaps and confusion.” While superficial laws, being made for present occurrence, may be abrogated for the good of the kingdom, the fundamental laws continue in force “till houses stand without their foundations and Englishmen wholly cease to be.”1
Apart from these fundamental natural laws, there are, according to Penn, three rights and privileges which form the birthright of Englishmen. These are: 1. An ownership and undisturbed possession. 2. A voting of every law that is made, whereby ownership or property is maintained. 3. An influence upon, and a real share in, that judiciary power that must apply every such law, which is the ancient, necessary, and laudable use of juries.2 Concerning the people as the source of power, Penn says: “The estate goes before the steward; the foundation before the house; people before their representatives, and the creation before the creature. The steward lives by preserving the estate; the house stands by reason of its foundation; the representative depends upon the people, as the creature subsists by the power of its creator. Every representative may be called the creature of the people, because the people make them, and to them they owe their being.”1 Penn was also an ardent champion of freedom of religious worship. “Liberty of conscience,” he said, “we ask as our undoubted right by the Law of God, of Nature, and of our own country.” “Nothing is more unreasonable than to sacrifice the liberty and property of any man (being his natural and civil rights) for religion, where he is not found breaking any law relating to natural and civil things.”2 Again he says: “I ever understood an impartial liberty of conscience to be the natural right of all men; and that he that had a religion without it, his religion was none of his own. For what is not the religion of a man’s choice, is the religion of him that imposes it: so that liberty of conscience is the first step to have a religion.”3
Another book produced during the colonial period showing the influence of Natural Law, and consequently remarkable for its democratic principles, is the work of John Wise, a very prominent minister of Ipswich, entitled A Vindication of the Government of New England Churches. This book was written in defence of the Congregational system of church government. It is characterized by clear logic, breadth of view, and excellent literary style. In its day the book was widely read. In 1772 a new edition was issued. On the list of subscribers is found the name of John Adams and of many of the most influential persons in New England. What makes this brief treatise so interesting to us is the fact that it contains the leading political principles afterward embodied in the documents of the Revolution. It is highly probable that, appearing in a new edition just at the right time, this book exerted great influence upon the fathers of the Republic. Wise applies the principles of Natural Law to the Constitution of the Congregational churches. “Under Christ,” he says, “the reason of the constitution of these and the primitive churches, is really and truly owing to the original state and liberty of mankind, and founded peculiarly in the light of Nature.”1 The excellence of this system he deems such that it seems to him “as though wise and provident Nature, by the dictates of right reason, excited by the moving suggestions of humanity; and awed with the just demands of natural liberty, equity, equality, and principles of self-preservation, originally drew up the scheme.”2
Wise enters into a consideration of the natural and the civil state. He wishes “to disclose several principles of natural knowledge; plainly discovering the Law of Nature; or the true sentiments of Natural Reason, with respect to man’s being and government.”3 He names Pufendorf as his chief authority. Wise believes that man is in the natural state a free-born creature, owing homage to no one save God. Man is governed by the Law of Nature, which is the immutable standard God has stamped upon the nature of man to guide him in all his actions. It is the law of both justice and morality. Morals are the “dictate of right reason founded in the soul of man.” With Grotius and Pufendorf he ascribes to man a sociable disposition. Man is guided by self-love and the instinct of self-preservation, but has a love for his fellows. Interference with the natural liberty of man is a violation of the Law of Nature. “Every man must be regarded as equal to every other man, since all subjection and all command are equally banished on both sides.”1 He holds that all men are born free by natural right. Civil government is not of divine institution, but is formed by a voluntary compact. If formed by nature, governments would be everywhere alike. That government is best which agrees with the temper and inclinations of a people. There are several covenants necessary to form political society. The first is a covenant to form society. Then a particular form of government must be set up. Lastly, there must be a covenant between rulers and subjects, the former promising to care for the common peace and welfare, the latter to yield faithful obedience. The State is a compound moral person whose will is the will of all. The common welfare or happiness of the people is the chief end of the State. Sovereignty is either original or delegated. Originally all power is in the people.2 The people may establish any form of government they wish. Power always reverts to them. Wise prefers the democratic form of government. “A democracy in Church or State,” he says, “is a very honorable and regular government according to the dictates of right reason.”3 It is repugnant to the Law of Nature to hold that any man may enslave himself. “The end of all good government is to cultivate humanity, and promote the happiness of all, and the good of every man in all his rights, his life, liberty, estate, honor, etc., without injury or abuse done to any.” No other form of government is so likely to preserve the peculiar good of the whole and of every individual member as a democracy.1
Such are the political doctrines of this remarkable treatise which was used by the colonists as a kind of political text-book. It is a proof of the democratic sentiments generated by the theory of Natural Law. It shows likewise that these liberal doctrines were particularly congenial to Congregationalists. Not only to them, but to the colonists in general, did the theories of Natural Law possess great fascination, because their conditions seemed to support the truth of them. The contract theory appeared to fit the circumstances exactly. A number of persons set out to found a colony. They seem to be in a state of nature, under no government whatever, until they assemble, draw up a compact, and organize a government. At first a pure democracy prevails, all having a hand in governing. Representation becomes necessary as the colony increases in size. The colonists chose certain of their number to act for the whole body. Sovereignty is, as it were, conferred by the people upon the magistrates. If any one wishes to withdraw from the jurisdiction of the State, he needs but to cross the borders of the colony and strike out into the forests to find himself in the state of nature.
To take Plymouth as an example. Here the entire body of the freemen who were church-members at first exercised legislative power. A democratic theocracy existed. There was no delegation of power. The number of colonists having increased, the participation of all in regulating public affairs became impracticable. Representation was accordingly established in 1639. The deputies of the people and all officers of the colony were chosen annually.1 Providence also was originally a pure democracy. The settlers met monthly in town meetings. Here, as in Massachusetts, representation was established.2
As we have seen, many factors worked together to generate a democratic spirit in the colonists. They were really republicans before they declared themselves to be so. To them the principle that all power is derived from the people was more than a mere theory. Because the political principles of the American Revolution had been embodied in their institutions their influence was intensified. The ideas of Milton, Sidney, Hooker, and Locke were familiar to them as Englishmen; but they had among themselves since the beginning of their history ardent champions of democratic views, viz.: Hooker, Roger Williams, Penn, and others.
In the American colonies the conditions existed which engendered democratic views and enabled the liberal political doctrines of the time to bear fruit. The Puritan principles of government, as we find them expressed in the works of Milton, Sidney, Locke, and others, of little actual influence upon the constitution of the mother country, were destined here to give birth to a form of government which is the admiration and hope of the world. Nowhere did there exist a people so devoted to their liberty, so independent in spirit, so free from the bondage of custom and tradition, as these American colonists. To no other people did the notion that all men are created free and equal seem so true as to them, and nowhere else did freedom and equality exist to the same extent. Inhabiting a new land, separated from the motherland by a wide and treacherous ocean, with new problems pressing for solution which could not be settled by precedent, what was more natural than that they should break away from traditions and apply reason to their affairs? The Law of Nature, being the Law of Reason, must have attracted them greatly. In struggling for liberty of conscience they had grown accustomed to look beyond the positive laws of the State and appeal to what they believed to be their Natural Right.1
The character of the colonists, their surroundings and form of life, their free political institutions, their democratic form of church government, as well as their past history, bred in them a spirit of individualism. The theory of the sovereignty of the people lay at the basis of their institutions—the doctrine which, as a ray of white light contains the various prismatic colors, embraces in itself all the so-called Rights of Man. Before individual rights could become secure, the last traces of feudalism had to be destroyed and the doctrine of the divine right of kings supplanted by the conception that the sovereignty resides in the people.
It must not be forgotten that many of the colonists were men of excellent education, who compare favorably with the most accomplished men of the motherland. Much care was bestowed upon the establishment of good schools. The sons of well-to-do families not infrequently went abroad to finish their education. The desire for culture was general. There was a large demand for books. Next to religious books, treatises on legal and political subjects were most eagerly read. To quote the words of Edmund Burke: “In no country, perhaps, in the world is the law so general a study. The profession itself is numerous and powerful, and in most provinces it takes the lead. The greater number of deputies sent to the Congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science. I have been told by an eminent bookseller, that in no branch of his business, after tracts of popular devotion, were so many books as those on the law exported to the plantations. The colonists have now fallen into the way of printing them for their own use. I hear that they have sold nearly as many of Blackstone’s ‘Commentaries’ in America as in England.”1 It was especially works on Natural Law which were carefully studied, the favorite writers being Grotius, Pufendorf, Locke, Vattel, and others. The fruits of this study showed themselves in the wonderful skill with which the colonists stated and defended their rights during the struggle with the motherland. With this conflict, and especially the documents to which it gave birth, we must now concern ourselves.