Thank you for reading Transformation. 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
Revolution — How Did We Get There?
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
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
The biggest riddle to solve would be what would replace the Crown. For the British, the sovereignty of the empire was contained in the person of the Crown. The revolutionaries were proposing that there be no king. If there was no king, then what would define the sovereignty of the new nation? It could not rest in a person – but in law. And for law to be effective, it had to have behind it the power of the State. What sort of power? How is it to be limited?
Bailyn had previously covered the tension between power and liberty. Unchecked power would result in forfeited liberty. Liberty, alone, would likely result in anarchy. The colonists would soon discover this problem with urgency when the first shots were fired in Concord, Massachusetts in 1775. At that point, all the theoretical debates on liberty and governance had to come up with a real-world solution to the problem of resisting the British and channeling resources to that end. While there was hope for reconciliation with England, the Continental Congress acted with ambiguity. But as hope diminished and it was clear that Massachusetts’s problem was everyone’s problem, a standing army had to be organized. In other words, power. It is odd that for a few months the Continental Congress exercised power without “sovereignty.” Sovereignty came at the publication of the Declaration of Independence, when it was clear that there was no turning back.
For the next five years, the Continental Congress would be focused on the war. Yet they knew that once the war was won (and that was a great uncertainty until the fortuitous defeat of the British at Yorktown in 1781), they would have to construct a government. We often forget that the Articles of Confederation, enacted in 1783, was a serious failure because it could not provide for an effective, sovereign government. It was essentially powerless. The U.S. Constitution of 1787 corrected that problem.
The theoretical basis of sovereignty was not helpful because, as has been frequently noted, the concept of a democracy was far from the human experience. Sovereignty in the 17th century was defined through a powerful monarch! By the late 18th century, sovereignty was expressed through “the Crown,” an ambiance of power shared by the Parliament and the monarchy. The Americans were claiming they did not need a monarch. But what substitutes for the monarch? The Americans were not even certain if they wanted a strong executive. Thomas Hobbes put it very well – a sovereign is an entity that can compel obedience. Hobbes was not all that popular amongst the colonists because he had little enthusiasm for the common man’s capacity to self-govern. But he had a point.
The debate over sovereignty in England, however, had evolved. The Civil War of mid-17th century England would prove that sovereignty could reside in Parliament without the presence of a king. Even early proponents of a strong monarchy conferred that such a license to rule still had to be “legitimate,” where the power of the monarch had to be affirmed by some measure of consensus. Many in Parliament would argue that a sovereign that ignores the “laws of nature” risked losing their claim to rule. So Charles I was executed. But Cromwell’s rule was essentially a dictatorship. The British were uncertain what they wanted. Once Oliver Cromwell died of old age, Charles II was invited to become king of England. The British needed a monarchy. But James II, who succeeded Charles II, had disregarded Bodin’s maxim that a monarch can be supreme, but not arbitrary. His inability to rule with Parliament resulted in his banishment from England, replaced with a monarch who could work alongside Parliament. This peculiar balance between Crown and Parliament would continue throughout the 18th century. Because of the corruption of the delegate selection process, the line between Crown and Parliament had grown thin, and it was hard for the colonists to distinguish one from the other.
Which leads to the second question – where does sovereignty reside? The colonists had now had over a century of experience of governing through councils. This worked well with local communities, but did not work well at the colonial level. This was particularly problematic when the state legislature would pass a law that a Crown-appointed governor would repeal. They had to work through the ambiguity of who exactly was “the Crown.” Was it the king, Parliament, or the capricious wiles of a Crown-appointed governor?
One thing was certain by the French and Indian War – Parliament was “absolute and arbitrary” as a sovereign because it formulated and enacted laws. This point was well-proven in 1688 when it summarily dismissed James II. If the colonists were to succeed, they would have to work through Parliament. “The Crown” was essentially a symbol. None of the kings of England could have vetoed a bill enacted in Parliament. So if it goes without saying that a king could not veto an act of Parliament, how could a colonial assembly? This problem would come to a head with taxation.
Prior to the French and Indian War, a pattern had evolved where the elected assemblies of the colonies had the prerogative to tax themselves. In 1763, that all changed as Parliament assessed “local taxes” onto the colonists. Thus, “no taxation without representation” became the cry of the colonists. It was not in Parliament they were arguing for representation – it was to maintain what they had practiced for over a century.12 Parliament, in other words, had crossed the line defined by Bodin long ago, the line between “absolute” and “arbitrary” power. 13
The colonists were living the debate of what powers are appropriated to an executive and where does that power reside. As Bailyn would state,
The arguments the colonists put forward against Parliament’s claims to the right to exercise sovereign power in America were efforts to express in logical form, to state in the language of constitutional theory, the truth of the world they knew. They were at first, necessarily, fumbling and unsure efforts, for there were no arguments – there was no vocabulary – to resort to; the ideas, the terminology, had to be invented.”14
For example, the separation of powers that is defined in American tradition is, to this day, not fully implemented in England. The Commons in Parliament is the sovereign in England. The Americans saw the danger in this arrangement. A divided sovereignty was considered, in 1775, an impossibility. Yet the Americans were implying it was possible. If there were to be taxes assessed onto the people it must be done with their consent. End of story. Taxation was an “internal” affair. Colonists were wiling to concede that Parliament had the right to assess duties on trade, albeit ever so unpopular, because it was “external” to the affairs of the colonies. This explains why the colonies were universally unsupportive of the Stamp Act. It was assessed as a local tax. But duties on trade had a profound effect on the colonists and it was soon being argued that there is no such thing as an “external” or “internal” tax. All taxes required colonial approval. The harsh responses of governors, particularly in Massachusetts, left in America the conclusion that the only two options were slavery or independence. The legislature of Massachusetts bluntly declared that no sovereign should hold absolute power – sovereignty required limits. That was a notion deemed inconceivable to the members of Parliament.15
This debate over sovereignty was the cancer that propelled revolution. It is interesting that we view taxes as so mundane – why would anyone want to shoot someone over taxes? Yet it was the process of writing the tax laws that the colonies had practiced for a long time without incident. It was after 1763 that it became apparent that the colonists were “subjects”, not “citizens.” Parliament was inapproachable. Representatives of the Crown were arrogant and dismissive. The Stamp Act affected everyone. Yet who would people complain to? Their delegates in the town councils and the colonial legislatures. But what could they do about it? The governor simply told them to submit like subjects to their sovereign.
Something had to correct this flaw of governance. How could arbitrary power be avoided? What exactly is the separation of powers? It was evident that Parliament had subsumed the powers of the executive, and this was a dangerous condition.
As noted previously, it took eleven years from the Declaration to the Constitution for the colonists to work out this riddle. How could a nation exercise sovereignty willst its governing structure was divided? It is, in a sense, as much of a mystery as the Trinity. Sovereignty requires power. This power would reside not in a person, not even in an office. But it would rest squarely on the will of the governed.
From 1769 to 1776, a transformation occurred in the minds of Americans. The pieces were coming together. The new country they hoped to build would bring to the world a representative government, a written constitution with a list of rights, and a divided sovereignty that rested on the will of the people. The colonists were confident they could make a functioning republic because they had nearly 150 years of experience governing themselves without the need of a king or a standing army. A written constitution would be a defense of liberties common to all people. Sovereignty would not be yielded by one powerful person, or by any particular branch of government. It would be defined by law and restricted by law.
1 The Ideological Origins of the American Revolution, by Bernard Bailyn, p. 160. Henceforth, the book will be referred to as IOAR.
2 IOAR, p. 160
3 IOAR, p. 161,162
4 IOAR, p. 169
5 IOAR, p. 173 – 175. This section contains an interesting exchange of ideas, refuting Blackstone and Hobbes. The defense of the Crown was posited by an Anglican minister.
6 IOAR, p. 178, 179 – Referring to a statement made by James Otis.
7 IOAR, p. 183
8 IOAR, p. 187
9 IOAR, p. 188
10 IOAR, p. 194
11 IOAR, p. 195
12 IOAR, p. 204
13 IOAR, p. 198 – in reference to 16th century political theorists Jean Bodin.
14 IOAR, p. 204, 205
15 IOAR, p. 220, 221
© Copyright 2022 to Eric Niewoehner