Transformation -- From Reaction to Revolution
How is it that the colonists arrived to the point where revolution was necessary?
Thank you for reading this essay. It is part of an ongoing series titled Old Friends and this is the fifth contribution on Barnard Bailyn's The Ideological Origins of the American Revolution.
The Revolution was in the minds and hearts of the people; a change in their religious sentiments, of their duties and obligations … This radical change in the principles, opinions, sentiments and affections of the people was the real American Revolution.
– John Adams, 18181
We have now arrived at the point where we ask, “How do you move from resistance to revolution?”
We need to think about this question. First, the revolutionaries moved from a negative to a positive disposition. For many years they reacted against measures enacted by the British Parliament. Now they were asking “What if …” To succeed, they would have to be seen not as a group of men who stood against something, but for something. Second, they began to actively engage in answering the hard questions of what exactly would replace the British Crown. To succeed they would have to share common core beliefs that justified the cause, the dance with death that treason entails, and the terrible cost of fighting the campaign.
What changed significantly was that what was once considered a weakness about colonial society became a virtue: “isolation, institutional simplicity, primitiveness of manners, multiplicity of religions, weakness in the authority of the state.”2 This change in talking points crossed the Atlantic into England and inside the Parisian salons. In essence, the discussion refocused from negatives (complaints against the Crown) to positives (the virtues of life in America). People in England and France were asking some serious questions about whether the proposals put forth by the colonists could be applicable to their own countries.
This was not an easy transformation. Looking back, what we see in the American Revolution is shrouded in a mythology that began during this period between 1769 and 1776. Yet this mythology was unformed in 1769. The colonists had to ask some hard questions and expend considerable energy in formulating a vision and constructing a complete alternative to what most people in the world considered a given – governance through a powerful monarch. For the English, their understanding of representational government was being challenged. The colonists had to affirm what they meant by representational governance and how the new country was to exercise its authority. Connecting the dots would be something rarely seen – a written constitution. And what would evolve would be a set of principles enshrined in law, something the world had never seen – the idea of “rights.”
Representation and Consent
Let’s start with the easy part. The colonists had long held a tradition of representational government. Before the 1750’s, much of what happened in the colonies evolved with little interference from the home country. The French and Indian War changed that psychologically when it was apparent the British were going to have to invest considerable life and treasure into defending, and expanding, their empire in North America. The power of the British army and navy were always somewhere else before the 1750’s. That was no longer the case. Was this a bad thing? Not really. But it was a bit awkward because the British went about their work in a manner different than what the colonists had grown accustomed. To British authorities in America at the time, they perceived the colonists to be stand-offish, unrealistic in regards to the cost of supporting a standing army and evidently unaware of their “place” in the social structure. For the colonists, it was the opposite. They were certainly inexperienced with having standing armies and that much you can give to the British. But British officers and authorities were seen as aloof and arrogant. Americans would probably acknowledge they were technically “subjects,” but heaven forbid if you treated them that way.
The British appeared to be blind about one of the most peculiar characteristics of the colonists – self-governance. The colonists had extended the voting franchise to shopkeepers, tradesmen, printers and farmers. Each colony had a unique mix of elected officials that were now highly experienced in developing a rule of law that did not require a standing army. America, in many respects, was classless. As the years progressed from 1764 onward, it was evident that the British government had not learned anything. To get this in perspective, the British still had not extended the voting franchise to the middle-class. “Farmers” did not really exist in England because most of the land was controlled by a noble class. In contrast, the colonists had, by 1764, experienced nearly a century and a half of self-governance. Their electorate was vastly more liberal than that of Britain which would not begin to gain ground on American democracy until 1832, with the working class integrated in 1867! While it is true that there were some requirements that restricted who could vote in the colonies such as property requirements, the franchise was still significantly much broader than that of Britain.3
Another aspect of representation that Bailyn points out is that we view the office as being connected to the place. The delegate that is elected from your town is sent to the capital to advance and defend the interests of your town. For the British, one’s place in Parliament was based on birth and wealth. It was not representational in the same sense. Membership in Parliament could be purchased. That was a fundamental divide between Britain and the colonies. It was so fundamental, many in Britain saw the American approach to representation as a threat.4 The larger interests of the British Empire would be compromised by MP’s advocating for narrow, local interests.
Thus, the concept of “consent” was seen quite differently between the colonists and the British elite. The colonists saw their system as organic, that “the consent of the governed” was implicit in the structure of representation. If the people elect a person to represent them, that delegate is obligated to follow the instruction of his district. Thus, any law that is written and enacted reflects the consent of the governed. This is so fundamental that it almost requires a separate treatise on the subject – human nature. Colonists had confidence that an ordinary person had the capacity to be ruled by laws because the laws were his – “he bound himself.” For the British, it was perceived to be “republican in its very nature, and tends to the utter subversion of the English monarchy.”5
John Dickinson
Looked at in another way, a charter needs to be a declaration of liberty, not a listing of gifts of liberty. “Kings and Parliaments cannot give ‘the rights essential to happiness.’” What is declared is that rights were, in essence, divinely appointed. As John Dickinson stated,
We claim them from a higher source – from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice.”8
However noble that may sound, there was no sudden agreement that “immutable maxims” could be codified into law. Even if they were, would it be enforceable? And what rights could be protected by a constitution? It is perhaps symbolic that the U.S. Constitution of 1787 began as simply a framework of how the institutions of government were to operate. The “Bill of Rights” was the immediate addition of ten amendments. Not exactly an afterthought, but a matter of pragmatics. The framers of the constitution were addressing two separate issues. First, the constitution would explain how the government would function. Second, they recognized that the new proposed federal government could not be trusted no matter how well designed, and that “immutable maxims of reason and justice” would be, in the words of Alexander Hamilton, eventually “rummaged for among old parchments or musty records” unless those rights were complemented by a government infrastructure that operated within the Rule of Law.9
As early as 1768 there was an assertion that a “bill of rights” was necessary. What rights? They began with the Lockean tripartite of Life, Liberty and Property. Most every American is familiar with the phrase “Life, Liberty and the Pursuit of Happiness” which is contained in the Declaration of Independence. What motivated Jefferson to switch out “Property” for “Pursuit of Happiness” is speculative, but it may have been his discomfort with including people as “property”, or a pragmatic recognition that not everyone who obtains wealth and/or happiness in their vocation necessarily is connected with owning property. The latter is probably what was recognized by colonists throughout its history – that their society had no nobility – thus people were not constricted by their attachment to property. Parts of Europe had long recognized this disassociation of property from wealth. Some of the richest men in Europe had their wealth in barrels of herring. Bankers, craftsmen, and printers did not receive gratification or wealth from collecting rents from subjects on one’s land. Men like John Hancock had their wealth on ships at sea. What bonded all these different people was that they chose their vocations. In choosing, they were happy. In sharp contrast, England was still not a very mobile society. Much of Europe could not discard the mindset of “classes,” where a person needed to acknowledge their status whether they chose it or not.
Others would go as far back as the Pilgrims in 1636 as the beginning when rights were listed in some form.10 New York had rights listed in its charter of 1691, disallowed by the Crown because of its “large and doubtful expressions.” These rights were quite specific, addressing some issues that had emerged from harsh experience.11 The individual was to be:
Free of unlawful arrest and imprisonment
Free of arbitrary taxation
Free of martial law
Not required to support standing armies in times of peace
Free of feudal dues
Guaranteed the due process of law
Guaranteed to a trial by a jury of his peers
And (if Protestant) full liberty to “enjoy his or their opinions, persuasions, [and] judgments in matters of conscience and religion.”
As you can see, this list is a hint of what is to come in 1787. Between 1636 and 1775 there is ample evidence that a concept of rights that limits the powers of government were part of the colonist experience. Borrowing from writers like John Locke they obtained a theoretical foundation, all the time having some real-world experience in defining exactly what those rights were and how they could be incorporated into a working government. Using the above list, you can see emerging the rights that people should have to protect them from arbitrary power: search and seizure only by warrant, rule by law, taxation through representation, the right to the due process of law, trial by jury, and the freedom to worship. The crucible of resistance to the Crown would incorporate other rights such as that of speech, the press and assembly.
Constitutions and Rights
Now it gets interesting. Bailyn has already pointed out that one of the important things to remember is that prior to the American Revolution, a written constitution did not exist. It was more an idea than a literal document. Both sides of the Atlantic could agree that the English were unique in that they had evolved a form of common law that upheld certain standards based on history and tradition. The colonists, however, in beginning to discuss a departure from Britain, had to put something in place of the Parliament, the Crown and the constitutional principles contained in British common law. It would have to be in writing.
Interestingly, Bailyn appears to not put much time into an analysis of the existing charters of the thirteen colonies and Canada. The colonists had experimented considerably with the form of government. When reviewing the charters you can see emerging the basic elements of the future American republic. But piecing together a framework that fitted all thirteen colonies would be a huge challenge, and this was Bailyn’s focus.
There was the question of whether a constitution should be fixed law. We take that for granted, but in 1765 that was not the case because, as noted above, the constitution was an organic evolution of common law. It is peculiar that this question remains to this day – is the US Constitution a static framework of what the federal government is permitted to do, or is it a “living document,” where new rights can be declared, or the interpretation of the constitution reshaped to meet modern day circumstances?
Coinciding with this debate was the concept of “rights.” Mind you – nobody had “rights” in those days except for some countries where the “divine right” of absolute monarchy prevailed. Should a constitution define those rights? And what constituted a “right?” The colonists expanded on the writings of Locke and the Philosophes of France by stating rights are based on “natural law,” perceptions of justice that are “immutably true.”6
To assist in this debate, colonists began to look to rights as restraints on the actions of government. If it is written into a constitution, it is done so as to provide parameters for law and the executive that enforces it. No topic better demonstrates this than the ongoing debate of the necessity of a state church. The right to worship as you please was, ironically, not firmly established until the 1820’s! The colonies, and later the states, frequently clung to the notion that each colony should have an official religion and denomination. But by 1776, most of the colonies had vigorously debated whether it was necessary to have a state church, and most particularly the Church of England. Yet by inserting the freedom of religion into a constitution, the colonists were beginning to significantly diverge from the narrative in England. It is peculiar that in both England and the colonies, the presence of a state church did not prevent new forms of worship to evolve. But this diversity in worship was replete with tension and occasional open conflict. It is no accident that James Madison would be the author of the freedom to worship, articulating a balance that had evolved from years of conflict with settlers in western Virginia against what was understood to be the official church of Virginia (Anglican). Virginia may have had an official religion, but the government would not force people to conform to it nor require affiliation to participate in governance.
Another way to look at rights is that their presence in a written constitution means they are guaranteed, not granted. In all, anything that restrains government or is guaranteed, should not be easily changed. As Samuel Cooke stated, “we ought to have in mind that whatever is left to be secured by law only may be altered by another law.”7
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