WHILE resisting the aggressions of the motherland the colonists at first appealed to the common law of England and their rights as English subjects. They would not be treated as subject-colonies and dependencies, but claimed the same rights and immunities their brethren in England enjoyed. These rights and liberties they declared to be their birthright as Englishmen. Not finding their grievances redressed they sought for another standard to which to appeal. Being denied their rights as English subjects they appealed to their rights as men. What they could not obtain by the laws of the land they now demanded according to Natural Right and the Law of Nature.
Massachusetts began the Revolution. She, also, first of all the colonies, appealed to Natural Right. Three persons, James Otis, John Adams, and Samuel Adams were instrumental in bringing this about. The writers on Natural Law which they quote are Hooker, Locke, Harrington, Grotius, Pufendorf, Vattel, and Burlamaqui. Of James Otis, John Adams writes: “This classic scholar was also a great master of the Law of Nature and Nations. He had read Pufendorf, Grotius, Barbeyrac, Burlamaqui, Vattel, Heineccius. . . . It was a maxim which he inculcated in his pupils . . . that a lawyer ought never to be without a volume of natural or public law, or moral philosophy, on his table or in his pocket.”1
In his celebrated speech on the writs of assistance, delivered at Boston, February, 1761, Otis spoke of the Rights of Man in the state of nature, asserting that in the natural state every man was his own independent sovereign, subject to, and guided by, the law written in his heart, and revealed to him by God through reason and conscience. He declared that man had an inherent and inalienable right to his life, liberty, and property. The reason why men associated to form a government he declared to be mutual defence and security of life, liberty, and property. For this end alone had the people given up their primitive rights. These principles he held to be fundamental laws of the British constitution. He declared all men to be free and equal, including even the negroes. John Adams relates that he shuddered to hear doctrines whose import was so far-reaching, and considered American independence to have been born then and there.2 Otis’s pamphlet on The Rights of the British Colonies, first published in the beginning of the year 1764, created a sensation throughout the colonies. It expressed the views afterward embodied in the “Bills of Rights” and exercised a great influence.
This celebrated pamphlet begins with the consideration of the origin of government. Otis considers government to be founded on the necessities of man’s nature, and to have an everlasting foundation in the unchangeable will of God, the author of nature, whose laws never vary. He seems to be favorably inclined to the compact theory, saying that though many objections had been raised to it, its opponents might after all not be able to prove “that the doctrine is a piece of metaphysical jargon and systematical nonsense.” For a fuller consideration of the subject he refers to Locke, Vattel, and the “divine” writings of the “great and incomparable” Harrington. Of the supreme power, Otis says that it is originally and ultimately in the people, and that they never did in fact freely, nor can they rightfully, make an absolute unlimited renunciation of this divine right, which is ever in the nature of the thing given in trust and on a condition, the performance of which no mortal can dispense with, viz.: that the person on whom the sovereignty is conferred by the people shall incessantly consult their good. He says that the principle of the salus populi is part of the law of nature and of that grand charter which God, to whom alone belongs the right to absolute power, has given to the human race. The object of government he considers to be to provide for the security and the quiet and happy enjoyment of life, liberty, and property.1
The people may choose any form of government they please. Every alteration may and ought to be made by express compact.2
“There can be no prescription old enough to supersede the Law of Nature and the grant of God Almighty; who has given to all men a Natural Right to be free, and they have it ordinarily in their power to make themselves so, if they please.”3
Every form of government is alike subject to the Law of Nature and of Reason. No king has absolute power. Nothing but life and liberty are naturally hereditary.
Otis believed with Locke that the Legislature has supreme power, but that this power is only fiduciary, and that the people may remove or change the legislature when it disregards the will of the people, who in that case have a right to assume their original liberty.1
Otis next treats of colonies in general. He considers the colonists to “be entitled to as ample rights, liberties, and privileges as the subjects of the mother country are, and in some respects to more.”2
Then follows a consideration of the Natural Rights of the colonists. By the Law of Nature they are born free, as all men are, without distinction of color. Here again Locke is quoted as asserting that all men are equal because they are all of the same species and rank, possessed of the same faculties and entitled to the same advantage of nature. The colonists being men, are equally entitled to all the Rights of Nature with Europeans. The Law of Nature was made by God. Man has no power to mend it or alter its course. He can only obey or disobey it.
Should the charter privileges of the colonists be disregarded or revoked, there are natural, inherent, and inseparable rights as men and as citizens that would remain after the so-much-wished-for catastrophe, and which, whatever became of charters, can never be abolished de jure, if de facto, till the general conflagration.
In his Vindication of the British Colonies, published in 1765 in defence of the principles contained in his previous pamphlet, Otis divides the Rights of Man into natural and civil, and divides the latter again into absolute and relative, declaring the natural, absolute, personal rights of the individual to be the basis of positive laws and to form the essence of political and civil liberty.
The absolute liberties of Englishmen he declared to be: 1. The right of personal security; 2. Personal liberty; and 3. Private property.
The secondary rights which he meant to preserve from attack are: 1. The constitution or power of Parliament. 2. The limitation of royal power. 3. The regular administration of justice. 4. The right of petition. 5. The right of having and using arms for self-defence.
In the Considerations on Behalf of the Colonists in a Letter to a Noble Lord, Otis praises the works of Selden, Locke, and Sidney, and censures the views of Hobbes.
He says that when the members of a society united from a state of nature and assembled in order to regulate their affairs, they were all equal and on the same level. The minority must obey the decisions of the majority. If their number be too large, they may delegate the governing power to whom they please. The persons chosen to act for the whole, are the trustees or agents of the entire society, and have a right to act for it so long as chosen. Every branch of government derives its power originally from the whole community. Jus divinum, the indefeasible inheritance, the indelible character, are only for the entertainment of old women. We have here the ideas of the Declaration of Independence and of the American Bills of Rights.
In 1765 John Adams had written his Dissertation on the Canon and the Feudal Law. It was directed against the Stamp Act, and was one of a number of pamphlets sent to England and published there under the title The True Sentiments of America. It speaks of “rights antecedent to all earthly government—rights, that cannot be repealed or restrained by human laws—rights, derived from the great Legislator of the universe.”1
The people have an “indisputable, unalienable, indefeasible, divine right” to know how their government is being conducted. Rulers are the attorneys, agents, and trustees of the people. If they violate the trust reposed in them, the people have a right to revoke the authority that they themselves have deputed “and to constitute abler and better agents, attorneys, and trustees.” “British liberties are not the grants of princes or parliaments, but original rights, conditions of original contracts, coequal with prerogative and coeval with government.” “Many of our rights are inherent and essential, agreed on as maxims, and established as preliminaries even before a Parliament existed.”2
Human nature is the foundation of government. Truth, liberty, justice, and benevolence are its basis.3
During and after the year 1765 Massachusetts Colony frequently appealed to the Law of Nature. This was without doubt due to the influence of Otis, John and Samuel Adams, all three of whom were men of great preeminence and influence, and actively engaged in the events that brought on the Revolution. Already in his youth Samuel Adams possessed those republican opinions for which he contended in manhood. In 1749, while but twenty-six years of age, he contributed an essay on Liberty to the Public Advertiser of Boston, a weekly paper maintained by a political club of which he was one of the foremost members, whose purpose it was to “state and defend the rights and liberties of mankind.” In this essay Adams considers the Rights of Men in the state of nature. No man, he maintained, has a right to relinquish these rights or to permit their curtailment, except in so far as is necessary for their preservation, for they are the gift of God. Neither a man’s life nor his liberty is his own to such an extent that he may destroy it or submit it to the wanton pleasure of another.1
In September, 1765, while the excitement over the Stamp Act was at its height, Samuel Adams was chosen a representative from Boston to the legislature of Massachusetts Bay.2 He drafted the famous fourteen resolves which were passed by the House October 29, 1765, as the assertion of the inherent and inalienable rights of the people. These resolutions created a sensation throughout the country and were universally applauded by the friends of liberty. They speak of the essential rights of the British constitution, which are founded in the law of God and Nature, and are common Rights of Mankind, to which the colonists are entitled, and of which they cannot be deprived. Security of property and voting of taxes by the representatives of the people are asserted as inherent rights. All taxes not imposed by the representatives of the people are declared to be infringements of their inherent and inalienable rights as men and British subjects. The right of trial by jury is the only security of life, liberty, and property.3
On September 21, 1765, the Pennsylvania Assembly at Philadelphia, in a series of resolutions on the Stamp Act, declared that the constitution of government in that province was founded on the Natural Rights of Mankind and the noble principles of English liberty, and therefore is, or ought to be, perfectly free.
On the same occasion Connecticut declared that all power is from the people and granted with certain bounds, reverting to the people if these bounds are exceeded.1
The Assembly of Massachusetts, which met in May, 1769, declared that the “establishment of a standing army in the colony in time of peace, without the consent of the General Assembly of the same, is an invasion of the Natural Rights of Man, as well as those which they claim as free-born Englishmen.”2
Most important of all appeals made to Natural Rights was the report written by Samuel Adams, which was presented by James Otis to a town meeting in Boston, convoked at Faneuil Hall, November 20, 1772. Drawn up as a protest against the infringement of the rights of the colonists by the attempt to make the salaries of the governor and the judges of the Superior Court dependent upon the crown instead of upon the people, this “Declaration of the Rights of the Colonists as Men, as Christians, and as Subjects” attracted wide attention, both in America and in England, and probably served as a model for the Declaration of Rights by the first Congress in 1774, for the Declaration of Independence, and for the Virginia Bill of Rights.3
The right to life, liberty, and property is declared to be a Natural Right, and, together with the right of supporting and defending them, a branch of the first Law of Nature, the duty of self-preservation. No man can be compelled to leave the state of nature, nor prevented, in case of civil or religious oppression, from entering another society. Men enter society by their own voluntary consent. The compact they form must be observed in every particular. They reserve to themselves every right not expressly ceded. The Law of Natural Reason is the standard to which all positive laws should conform. Every man has a right to worship God as his conscience dictates. To just and true liberty, equal and impartial liberty, all men have a right according to the eternal and immutable laws of God and Nature. The natural liberty of man is absolute freedom from control and subjection to any law except that of Nature. In the state of Nature every man is his own judge, subject only to God. When man enters society this natural liberty is not abridged any further than is necessary for the good of the whole. It is absurd to suppose that men would renounce their essential Natural Rights or the power to protect or preserve them. It is for the very protection of their rights that government is instituted. Being given to man by God, the right to freedom cannot be yielded up to another. Man cannot enslave himself. Should he through fear, fraud, or mistake relinquish any one of his essential rights, the renunciation would be void according to the eternal law of reason and the grand end of society.
The colonists are, by the laws of God and nature, and by the common law of England, exclusive of all charters, declared to be entitled to all the natural, essential, inherent, and inseparable rights, liberties, and privileges of natural-born Englishmen. Among the rights which no man can either relinquish or take away from others are: 1. The establishment of the legislative power, which itself cannot subvert the fundamental natural law of the preservation of society. 2. The power of the legislative is not an absolute or arbitrary disposal over the lives and fortunes of the people and must be just and equal for all. 3. No man can be justly deprived of his property without his own consent or that of his representative.1
The principles of Samuel Adams, embodied in these resolutions of 1772, are the principles of the Revolution. All the documents of that period merely repeat them. “He had brought them triumphantly forward, keeping the public attention ever fixed upon them, till they were not only adopted by a town, but established as the guide of a people in its march to freedom.”2
“Without the character of Samuel Adams,” says his relative, John Adams, “the true history of the American Revolution can never be written. For fifty years his pen, his tongue, his activity, were constantly exerted for his country without fee or reward.”3
At the close of the year 1774 the Council and House of Representatives of Massachusetts Bay adopted a proclamation composed by John Adams which was sent to all the town meetings and to all the ministers in the colony. Among the principles which it contained the following are noteworthy: “As the happiness of the people is the sole end of government, so the consent of the people is the only foundation of it, in reason, morality, and the natural fitness of things. And, therefore, every act of government, every exercise of sovereignty against or without the consent of the people, is injustice, usurpation, and tyranny. It is a maxim that in every government there must exist somewhere a supreme, sovereign, absolute, and uncontrollable power; but this power resides always in the body of the people; and it never was, or can be, delegated to one man or a few; the great Creator having never given to men a right to vest others with authority over them unlimited either in duration or degree.”
“When kings, ministers, governors, or legislators, therefore, instead of exercising the powers intrusted with them according to the principles, forms, and proportions stated by the constitution, and established by the original compact, prostitute those powers to the purposes of oppression; to subvert, instead of supporting a free constitution; to destroy, instead of preserving the lives, liberties, and properties of the people, they are no longer to be deemed magistrates vested with a sacred character, but become public enemies and ought to be resisted.”1
Many other books and pamphlets might be mentioned showing how usual a custom it had become at the outbreak of the Revolution to employ the doctrines of Natural Law in defending the rights of the colonists. Thus, the young Alexander Hamilton, when still a student at college, evinced not only his learning in the positive laws of England, but also his familiarity with the chief writers of Natural Law, in his vigorous and able pamphlet, The Farmer Refuted, which appeared February 5, 1775. He believes that the Deity is the author of an eternal and immutable law which takes precedence over all human regulations and binds mankind prior to any human institution. The Natural Rights of Mankind depend upon this law. Civil liberty is founded upon natural liberty, and is but such a modification of it as civil society makes necessary. “The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of the Divinity itself, and can never be erased or obscured by mortal power.”1 Hamilton holds that “in a state of nature no man had any moral power to deprive another of his life, limbs, property, or liberty.”2 Civil government is formed by compact. This compact is liable to such limitations as are necessary for the security of absolute rights. The only title upon which any man or set of men can base their claim to govern is the consent of the governed. “To usurp dominion over a people in their own despite, or to grasp at a more extensive power than they are willing to entrust, is to violate that law of nature which gives every man a right to his personal liberty, and can therefore confer no obligation to obedience.”3
After having studied the political principles of the chief writers who touched upon the subject we are considering, let us now investigate the public documents, especially the Bills of Rights, in which these ideas found expression.
The papers drawn up by the various general congresses and by the States were printed in many European newspapers and eagerly read abroad. They were almost universally admired because of their clearness, moderation, and their elevation of thought. Schlosser states that they became the gospel of a new system of public law.4
Of the members of the Congress of 1774 Lord Chatham said in the English Parliament that for genuine sagacity, for singular moderation, for solid wisdom, manly spirit, sublime sentiments, and simplicity of language, for everything respectable and honorable, the Congress of Philadelphia stood unrivalled.1
One of the first acts of this Congress was to appoint a committee consisting of two delegates from each colony, to draw up a Declaration of Rights and to point out the violations of these rights which had taken place.2
John Jay, James Duane, Richard Henry Lee, John Rutledge, John Adams, and Samuel Adams were the leading members of this committee. It is unfortunate that our knowledge of the discussions which arose concerning these rights is so meager, our only source of information being the sparse notes of John Adams. Evidently a dispute arose regarding the basis of these rights. From what we know in regard to the views of John and Samuel Adams, as expressed in their writings, it is probable that they advocated an appeal to the Laws of Nature, such as had been made by Massachusetts. The biographer of John Adams says that he advocated “tracing effects to their ultimate causes. Quite averse to resting the justice of the American claims upon the mere offspring of man’s will, upon the construction put upon an unwritten local law, or upon grants and charters derived from an equivocal sovereignty, he preferred to include an appeal to the general ideas of Natural Right.”3
Mr. Jay thought it necessary to “recur to the Laws of Nature and the British constitution to ascertain their rights.” Colonel Lee advocated that the colonists lay their rights upon the broadest bottom, the ground of Nature, since their ancestors found no government here. But Mr. Rutledge thought their claims were founded on the British constitution and not on the Law of Nature. Mr. Duane thought the Laws of Nature would be too feeble a support.1 In a report, no copy of which exists, though twelve, one for each colony, were ordered to be prepared, the matter was referred to Congress itself. It was decided, contrary to the views of Adams and others, that no mention be made of Natural Rights and that no grievances be stated whose origin went before 1763.2
Through the thorough discussion of the principles of Natural Law and of the Rights of Men the various delegates to Congress must all have become familiar with these theories. This discussion may, after the connections with the mother country had been completely severed, and there was no longer an excuse to appeal to the British constitution, have led to the “Bill of Rights” drawn up by Virginia, some of whose delegates had opposed the appeal to Natural Rights in 1774, and may also explain in some measure why the other colonies imitated the example of Virginia by prefixing such declarations to their constitutions. The rights to which the colonists are entitled, according to the declaration of Congress as agreed upon October 14, 1774, “by the immutable Laws of Nature, the principles of the English constitution, and the several charters or compacts,” are: The right to life, liberty, and property; the rights, liberties, and immunities of free and natural-born subjects of England which were possessed by their ancestors before they emigrated and which they did not forfeit, lose, or surrender by their emigration; to a free and exclusive power of legislation in their several provincial legislatures in all cases of taxation and internal policy. They are entitled to the common law of England, especially to the right of trial by jury; to the English Statutes which existed at the time of their colonization; to the privileges and immunities granted by their charters and provincial laws; to the right of petition and assembling to consider their grievances. The keeping of a standing army in the colonies in times of peace without the consent of the legislature is unlawful. The constituent branches of government should be independent of each other. It is declared unconstitutional, dangerous, and destructive to American legislation that a council appointed at the pleasure of the crown exercise the legislative power.1
The basis of all these rights is still the British constitution. After independence had been declared another basis was necessary. “Virginia,” as Bancroft says, “moved from charters and customs to primal principles; from the altercation about facts to the contemplation of immutable truth. She summoned the eternal laws of man’s being to protest against all tyranny. The English petition of rights in 1688 was historic and retrospective; the Virginia declaration came out of the heart of nature and announced governing principles for all peoples in all time. It was the voice of reason going forth to speak a new political world into being. At the bar of humanity Virginia gave the name and fame of her sons as hostages that her public life should show a likeness to the highest ideas of right and equal freedom among men.”2
The old Virginia House of Burgesses had been dissolved on the 6th of May, 1776, to make way for the new convention. The instruction given by the county of Buckingham to its delegates is indicative of the spirit and the purpose of this body. “We intrust you to cause a total and final separation from Great Britain, to take place as soon as possible; and a constitution to be established with a full representation, and full and frequent elections, the most free, happy, and permanent government that human wisdom can contrive and the perfection of man maintain.”
We have here indicated the spirit from which grew the Bill of Rights. It was to be the work of this body to separate from the mother country, and to create an entirely new government based upon the sovereignty of the people and realizing the highest degree of perfection human wisdom could devise. Reason, not custom, must be their guide; the Law of Nature, not that of England, their standard.
A committee of thirty-two was appointed to draw up a Declaration of Rights. Archibald Cary, Richard Bland, Edmund Randolph, Patrick Henry, and James Madison were among its members.
It was George Mason who drew up the famous document known as the Virginia Bill of Rights. The ideas contained therein were by no means new, but in this paper they received a classic expression. They were presented to the Convention on the 27th of May, 1776, by Archibald Cary. For two weeks that body deliberated upon them. They were finally adopted without alteration except as regards the last article, which refers to freedom of conscience.
Mason’s article favored granting full toleration of worship. James Madison objected to the word toleration, declaring it to imply a concession, while it was a sacred Right of Man to worship God according to his conscience.1
As Virginia was at the time the most aristocratic colony, so it was the one in which the principle of religious toleration had received least recognition. The Anglican Church was the established Church. Young Madison had himself suffered from religious persecution. In a letter to William Bradford, written January 24, 1774, he writes: “If the Church of England had been the established and general religion in all the northern colonies as it has been among us here, and uninterrupted tranquillity had prevailed throughout the continent, it is clear to me that slavery and subjection might and would have been gradually insinuated among us. Union of religious sentiments begets a surprising confidence, and ecclesiastical establishments tend to great ignorance and corruption, all of which facilitate the execution of mischievous projects.”2 “That diabolical, hell-conceived principle of persecution,” he continues, “rages among some; and to their eternal infamy, the clergy can furnish their quota of imps for such a business. This vexes me the worst of anything whatever. There are at this time, in the adjacent country, not less than five or six well-meaning men in close jail for publishing their religious sentiments, which, in the main, are very orthodox. . . . So I must beg you to pity me and pray for liberty of conscience to all.”3 In another letter of April 1, 1774, he wrote: “Religious bondage shackles and debilitates the mind, and unfits it for every noble enterprise, every expanded prospect.”4
The Bill of Rights was adopted June 12, 1776. It declares “that all men are by nature equally free and independent.” The compact theory of government is presupposed. Men are conceived as having inherent rights of which they cannot deprive or divest their descendants. These natural or inherent rights are designated as “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”1 The doctrine of the sovereignty of the people is clearly expressed. All power is asserted to be vested in and derived from, them. “Magistrates are their trustees and servants, and at all times amenable to them.”
The object of government is defined as the “common benefit, protection, and security of the people.” Of possible forms of government, that is best which ensures the greatest degree of happiness and safety and the best administration. The people may change the government if these purposes are not realized. This is said to be “an indubitable, inalienable, and indefeasible right.”
Public service alone is declared to be the title to exclusive emolument or privilege. No offices ought to be hereditary.
The doctrine of separation of powers which had been developed by Hooker, Milton, and Montesquieu is stated. There are to be frequent, certain, and regular elections. There ought to be no caste of public officials. All officers of the State are to be taken from the body of the people and shall return to private station. Elections ought to be free. The right of suffrage should be given to all who have common interest with and attachment to the community. No one ought to be taxed without his consent or deprived of his property involuntarily. All laws are to issue from the people or their representatives, and to have for their object the public good.
The suspension of laws or their execution by an unlawful authority is affirmed to be contrary to the rights of the people. Then follow four clauses which are judicial in their nature, to the effect that every man has a right to demand the cause of his accusation in all capital or criminal prosecutions; to be confronted with accusers and witnesses; to call for evidence in his favor; to be tried by an impartial jury of twelve men; that he cannot be compelled to give evidence against himself, nor can be deprived of his liberty except by the law of the land or the judgment of his peers.1 “Excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”2 General warrants ought not be granted. The trial by jury in cases affecting property should be held sacred.
The freedom of the press is declared to be one of the great bulwarks of liberty which no free government will restrain.
The proper, natural, and safe defence of a free State is considered to be a well-regulated militia of the citizens. Standing armies are dangerous to liberty. The civil power should control the military.
Government should be uniform. It is only by adhering to justice, moderation, temperance, frugality, and virtue, and by keeping fundamental principles in mind, that liberty can be preserved.
Madison’s article closes the list. It affirmed “that religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity towards each other.”1
The Declaration of Independence, composed after the Virginia Bill of Rights, declares that the Laws of Nature and of Nature’s God entitle one people to sever their connection with another and make themselves independent. It holds certain things to be self-evident truths, that is, to be true according to the Law of Nature. One of these truths is that all men are created equal. Wherein this equality consists we are not told. It is also asserted that men possess certain unalienable rights, among which are the right to life, to liberty, and to the pursuit of happiness. Governments are held to be instituted for the purpose of securing these rights. The principle of the sovereignty of the people is also asserted. The people may change or abolish a government that becomes destructive to the ends for which it is instituted. They may “institute new government, laying its foundation on such principles and organizing its powers in such form as to them shall seem most likely to effect their safety and happiness.”
There is not a single principle among these of which Jefferson was the originator. Some of these doctrines had been put forth centuries before. There can be no doubt, however, that the influence of the Declaration of Independence was greater than that of any other similar document.
The example of Virginia was followed by the other American States. The Virginia Bill became the model for other Bills of Rights which the various States prefixed to their constitutions to guarantee the rights of the citizens.
The preamble to the constitution of Massachusetts considers the body politic to be formed by a voluntary association of individuals and to be “a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” The constitution declares all men to be born free and equal. It empowers the people to provide for the institution of the public worship of God and “the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.”1
The Declaration of Rights of Connecticut declares “That all men when they form a social compact are equal in rights.” It provides that “the exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this State, provided that the right hereby declared and established shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the State.”2
The constitution of New Hampshire affirms: I. “All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.” III. “When men enter into a state of society, they surrender up some of their Natural Rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.” IV. “Among the Natural Rights some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the rights of conscience.”1
The North Carolina Declaration of 1776 states “that perpetuities and monopolies are contrary to the genius of a free State and ought not to be allowed.”
The Pennsylvania constitution of 1776 contains the statement “that all men have a natural inherent right to emigrate from one State to another that will receive them, or to form a new State in vacant countries, or in such countries as they can purchase, whenever they think that thereby they may promote their own happiness.” Another article says “that the people have a right to assemble together, to consult for their common good, to instruct their representatives, and to apply to the legislature for redress of grievances, by address, petition, or remonstrance.”2
The importance attached by Americans to these Bills of Rights is shown by the fact that all the States have incorporated some such a Declaration of Rights into their constitutions, the newer States having in most cases copied from the older.
Comparing these Bills of Rights with the famous English documents, such as Magna Charta, the Bill of Rights of 1689, and others, we notice that the English declarations contain no allusions to Natural Justice nor any abstract principles whatever, but name certain concrete rights to which individuals are entitled, not as men, but as English subjects. In the American Bills of Rights, on the other hand, we find statements of abstract principles; such as the natural freedom and equality of men, the purpose of government, the doctrines of the sovereignty of the people, of the separation of powers, and the like, associated with statements of concrete rights; such as the right of trial by jury, freedom of speech and of the press, freedom of elections, security against excessive fines, cruel and unusual punishments, general warrants, and others. While the first class of statements are based upon the doctrines of Locke, Blackstone, Vattel, Pufendorf, and in a few instances of Montesquieu and Rousseau, the concrete rights are taken in most cases, and often copied verbatim, from Magna Charta or the English Bill of Rights.
In severing the ties which bound them to the motherland, the colonists could no longer regard rights which were granted by king and Parliament as applying to them. They must find another support for their rights. The political philosophy of their age came to their relief. They proclaimed the Rights of Man and founded them in Nature. But it was only natural that the well-known clauses of the English documents should still possess attraction for them. Indeed, it was for definite rights they cared most. Sober Englishmen as they were, there was but little likelihood of their attempting to carry abstract statements of equality and liberty to their logical conclusions, as did the French people during their Revolution. In France these selfsame ideas became a mass of dynamite which shattered the entire social and political order of things and gave rise to the worst excesses of the Reign of Terror. In America no disturbances of any sort arose as a result of the proclamation of these principles. The difference of consequences is attributable to a difference of circumstances, of past history, and above all, a difference in the character of the American and the French people. What has been called the “Revolutionary spirit” was totally lacking in America. Again, while the American Revolution had few further results than that of recognizing the independence of the colonies, the French Revolution was a social, political, and administrative upheaval, which meant the arrival of a new era, not only for France, but for the world.
It must not be supposed, however, that these doctrines have had no influence in America. On the contrary, it is impossible to overestimate their influence in promoting that love of individual liberty which, it is true, is characteristic of the entire Anglo-Saxon race, but which is nowhere so strong as in this country. American enterprise and independence of character cannot be matched the world over. It is this trait of character which, more than any other, has made our country what it is to-day. This American spirit is the spirit of the Bills of Rights. The American States have proclaimed and guaranteed the rights of the individual. Indeed, the Bill of Rights is everywhere, perhaps, regarded as the most important part of the State constitution. Judges have frequently declared laws unconstitutional because they were contrary to the spirit of the Bill of Rights.
But what necessity is there for such declarations of rights in a republic?
Magna Charta and the other English papers were intended primarily as a protection of the individual against the arbitrary exercise of power on the part of the king. They were to serve as a check upon the king. Since to-day the king has become a mere figurehead, however, and Parliament has become omnipotent, these documents no longer have a purpose. They do not protect the individual against Parliament, for the power of Parliament is unlimited. Parliament possessing full sovereignty can grant or take away individual rights as it chooses. There is therefore, in the British constitution, no means of protecting the individual against the government.
The American Bills of Rights are intended to serve as a check upon the government, restraining it from interference with the rights the individual is to enjoy. But is such a safeguard necessary in a government where the power is in the hands of the people? To answer this question it is necessary to bear in mind that democracy and liberty are by no means synonymous. The fact that the people rule is no guarantee that personal liberty must prevail. Public liberty does not imply civil liberty. The inhabitants of the Greek and Roman republics possessed extensive public rights, but no individual rights in the modern sense. It is true that in the last few centuries the struggle for liberty has been at the same time the struggle for democracy. But unlimited sovereignty, whether exercised by one, a few, or the many, is always liable to lead to tyranny. It is doubtful whether any tyranny can be worse than that exercised in the name of the sovereignty of the people. France experienced the truth of this during the Reign of Terror. The Bills of Rights are intended as a limitation of the sovereignty of the people in favor of the liberty of the individual.