II. Imperial Reforms and Colonial Resistance, 1764–1766

In the aftermath of the Seven Years' War (1756–1763), the king's ministers in Parliament, burdened by the debt Britain had incurred to defeat the French and disillusioned by the colonists' unwillingness to pay their share of the costs of the war, decided to reform the empire by centralizing power in London.Footnote ⁷ Beginning in 1763, they strengthened the empire's system of trade regulation (the Navigation Acts), making it easier for customs officials to prosecute colonial smugglers, and attempting (in the Sugar Act of 1764) to raise a revenue from import duties on goods imported into the colonies. Concerned that the colonial desire to settle in the territory newly conquered from the French (in particularly the fertile lands of the Ohio Valley) would exacerbate already tense relations with the Native Americans, they made the momentous decision to keep an army in America after the peace had been signed. They also decided to limit westward settlement, reserving valuable land west of the Appalachians for the Native Americans in the Royal Proclamation of 1763. And in order to pay for the cost of colonial defense, Parliament passed a stamp tax in the spring of 1765 which affected a wide range of goods and services in the colonies, from playing cards to newspapers to court documents, the use of which required the purchase of special stamped paper.Footnote ⁸

With the exception of the Royal Proclamation, these initiatives all emanated from the king's ministers in the House of Commons and the House of Lords. This was crucial as it made the long-standing question of what rights the colonist could claim in the empire rest on the authority of Parliament, an authority which the leading jurists of England were coming to see as in principle unlimited. According to William Blackstone, author of a widely influential legal treatise, Parliament could “do every thing that is not naturally impossible; and therefore some have scrupled to call it's power, by a figure rather too bold, the omnipotence of Parliament. True it is, that what they do, no authority on earth can undo.”Footnote ⁹

The first responses to the ministry's reforms came in the fall of 1764, as the colonial assemblies protested both the Sugar Act and the pending Stamp Act. In a series of petitions to the king and both houses of Parliament, the colonial assemblies resisted these imperial reforms with a powerful and widely shared account of their right to be free from nonconsensual taxation, as well as to enjoy a degree of internal autonomy or self-government in the empire, which they in turn argued was necessary if their individual rights as Britons outside the realm were to be secure.Footnote ¹⁰ As the New York assembly's petition to the House of Commons put it: “an Exemption from the Burthen of ungranted, involuntary Taxes, must be the grand Principle of every free State.” Without such a right “vested in themselves, exclusive of all others,” the assembly argued, “there can be no Happiness, no Liberty,” and “no Security,” “for who can call that his own, which may be taken away at the Pleasure of another.” The principle of consensual taxation was, the assembly insisted, “the natural Right of Mankind.”Footnote ¹¹

The New York assembly also grounded their case for colonial rights on a series of claims about the conditions of settlement in America. As the assembly informed the Commons, in settling America they had “submitted to Poverty, Barbarian Wars, Loss of Blood … and ten Thousand unutterable Hardships, to enlarge the Trade, Wealth, and Dominion of the Nation.” As such, they claimed an “Exemption” from Parliamentary taxation not as a “Privilege” but “as their Right.”Footnote ¹² In other words, because they had created an empire for the Crown by their own efforts, defending themselves against a “barbarian Enemy,” they had a right to “a civil Constitution” which was “permanent” and could be “transmitted to their latest Posterity.”Footnote ¹³

Although the New York assembly conceded that Parliament had the right to levy duties for the sole purpose of regulating the empire's trade, it resisted any further extension of Parliament's authority. Indeed, it argued that “History” cannot “furnish an Instance of a Constitution” which permits “one Part of a Dominion to be taxed by another, and that too in Effect, but by a Branch of the other Part.” Having reduced Parliament to merely a “Branch” of the government of one part of the empire, the New York assembly added that it had a financial interest in making Britons “on one Side of the Atlantic” “submit to the most unsupportable Oppression and Tyranny.”Footnote ¹⁴ And it warned that the imposition of such a tyranny would “turn a vast fertile, prosperous Region, into a dreary Wilderness; impoverish Great-Britain, and shake the Power and Independency of the most opulent and flourishing Empire in the World.”Footnote ¹⁵

In December 1764, the Virginia House of Burgesses sent a petition to the king with a remarkably similar account of the rights of the colonists in the empire. According to the burgesses, it was “a fundamental Principle of the British Constitution” that “the People are not subject to any Taxes but such as are laid on them by their own Consent.”Footnote ¹⁶ The burgesses also insisted that they had this “Right” as both “Men” and as “Descendents of Britons”—that is, they grounded their rights on both the common law (and its historical legacy) as well as the more universal basis of the law of nature. As the assembly's memorial to the House of Lords put it: these new taxes would be “subversive” of “that Freedom which all Men, especially those who derive their Constitution from Britain, have a Right to enjoy.”Footnote ¹⁷ The burgesses also insisted that their migration across the Atlantic (and thus outside the realm) had not in any way diminished their rights. As they informed the Lords, because “their Ancestors brought with them every Right and Privilege they could with Justice claim in their Mother Kingdom, their Descendants … cannot be deprived of those rights without injustice.” As the burgesses told the Commons, the “Privilege” of consensual taxation was “inherent in the Persons who discovered and settled” Virginia, and was not “renounced or forfeited by their Removal hither.” Moreover, they and their ancestors had extended the territory and dominion of Britain, and in return for their efforts the king had guaranteed them all the “Rights and Immunities of British Subjects” in a royal charter (and later in the commissions to royal governors), along with the “Power” to pass laws for the general welfare (with the consent of the governor and council). In this manner, the king had expressed his “tender” regard for “the Rights of his American Subjects,” rights which the burgesses insisted were a “sacred Birthright and most valuable Inheritance.”Footnote ¹⁸

The initial protests by New York and Virginia in 1764 were echoed in the protests against the Stamp Act in 1765. In all, eight colonies sent some form of official protest to London. Rhode Island's Resolves claimed that the “People of this Colony” had “the Right of being governed by their own Assembly in the Articles of Taxes and internal Police.”Footnote ¹⁹ Pennsylvania's assembly resolved “That the inhabitants of this Province are entitled to all the Liberties, Rights and Privileges of his Majesty's Subjects in Great-Britain or elsewhere,” adding that “the Constitution of Government in this Province is founded on the natural Rights of Mankind, and the noble Principles of English Liberty.” The Pennsylvania assembly went on to claim that it is “the inherent Birth-right and indubitable Privilege, of every British Subject, to be taxed only by his own Consent, or that of his legal Representatives, in Conjunction with his Majesty, or his Substitutes.”Footnote ²⁰ According to the Maryland assembly, “the first Adventurers and Settlers of this Province” “brought with them and transmitted to their Posterity and all other his Majestys (sic) Subjects since Inhabiting in this Province all the Liberties privileges Franchise and Immunities that any time have been held enjoyed and possessed by the People of Great Britain.” And while the assemblymen in Maryland also rested their claim to be exempt from Parliamentary taxes on their charter, they were careful to insist that the “said Charter is Declaratory of the Constitutional Rights and Privileges of the Freemen of this Province”—that is, it did not create the rights but merely declared them.Footnote ²¹ The South Carolina assembly insisted that the king's subjects in America were “intitled to all the inherent Rights and Liberties of His natural born Subjects within the Kingdom of Great Britain.” And they insisted that the right to consent to taxation by their chosen representatives (or “given personally”) is “inseparably essential to the Freedom of a People, and the undoubted Right of Englishmen.” Indeed, the colony's representatives insisted, their “Happiness” depends on the “full and free enjoyment of their Rights and Liberties.”Footnote ²² The Massachusetts General Court maintained that the security of property from arbitrary seizure is one of the “essential Rights of the British Constitution of Government, which are founded in the Law of God and Nature, and are the common Rights of Mankind.” Only by exercising the “Powers of Government” granted in the royal charter, the General Court insisted, could they secure their “constitutional Rights.”Footnote ²³

The Stamp Act Congress met in the fall of 1765 with twenty seven delegates from nine colonies in attendance. Virginia, Georgia and North Carolina were not able to elect any delegates because their governors refused to convene assemblies (and New Hampshire declined to attend). In its petitions to the king, the Commons and the Lords, the Congress echoed the earlier arguments of the colonial assemblies, claiming that the colonists were entitled to “all the inherent Rights and Liberties of the Natives of Great Britain.” Most importantly, this meant that they had a right to be exempt from all taxation not imposed by their “several Legislatures.”Footnote ²⁴ Moreover, their “remote situation” made it impossible for them to be represented anywhere but in their “respective subordinate Legislature.” As such, the colonies had a “full power of Legislation, agreeable to the English Constitution,” but at the same time the Congress acknowledged a constitutionally vague “Subordination to Parliament.”Footnote ²⁵ This tension between the rights of the colonists organized in self-governing colonies and the sovereign claims of Parliament was to be central to the ensuing imperial crisis.

In addition to the official protests, numerous Britons on both sides of the Atlantic picked up their pens and wrote pamphlets and newspaper essays both for and against the Sugar Act and the Stamp Act. In order to get a sense of what kind of case was made for colonial rights in this large literature, I will focus on two prominent British American pamphlets, one by Stephen Hopkins (1701–1785), the governor of Rhode Island, and the other by Richard Bland (1710–1776), a prominent member of the Virginia House of Burgesses.

In The Rights of Colonies Examined, Hopkins opposed the new imperial policies because “British subjects in America have equal rights with those in Britain.” Moreover, he argued, “they do not hold these rights as a privilege granted them, nor enjoy them as a grace and favor bestowed, but possess them as an inherent, indefeasible right, as they and their ancestors were freeborn subjects, justly and naturally entitled to all the rights and advantages of the British constitution.”Footnote ²⁶ Given this, Parliament's attempt to tax the colonies was a violation of their “just and long enjoyed rights,” for to be taxed at the “mere will” of another is to be placed in a state of “abject slavery.” Hopkins also invoked the colonial charters in his case against Parliament, arguing that all of the New England colonies had made a compact with the king “before their departure” which “fully settled” “the terms of their freedom and the relation they should stand in to the mother country in their emigrant state.” According to its terms, they would be “subject to the King and dependent on the kingdom of Great Britain”; and “in return they were to receive protection and enjoy all the rights and freedoms of freeborn Englishmen.”Footnote ²⁷ Finally, Hopkins defended the colonists' rights by claiming that “at their own expense” they had “transported themselves to America,” and “with great risk and difficulty settled among savages, and in a very surprising manner formed new colonies in the wilderness.”Footnote ²⁸ For this reason, Hopkins included in his list of grievances the Royal Proclamation's prohibition on western settlement. As he pointed out, the colonists had “exulted” in the defeat of the French, yet they “reaped no sort of advantage by these conquests,” gaining “not … a single acre of land,” and having “no part in the Indian or interior trade.”Footnote ²⁹

Despite this strong assertion of colonial rights, Hopkins did not deny that there were some areas in which Parliament had jurisdiction over them. The colonies, he noted, have their own legislatures which provide for their “peace and internal government, yet there are many things of a more general nature, quite out of reach of these particular legislatures, which it is necessary should be regulated, ordered and governed.” For example, the “commerce of the whole” and indeed “everything that concerns the proper interest and fit government of the whole commonwealth.” In these areas, he conceded, it is “absolutely necessary” to have “some supreme and overruling authority with power to make laws and form regulations for the good of all, and to compel their execution and observation.”Footnote ³⁰ Nevertheless, Hopkins denied that Parliament was sovereign over America, for, he argued, its members only represent the people of Great Britain and thus their power cannot “exceed that of their constituents.” Rather, in an “imperial state” consisting of “many separate governments each of which hath peculiar privileges” and in which no one part is superior to and able to “make laws for or to tax” the “lesser part,” “all laws and all taxes which bind the whole must be made by the whole.”Footnote ³¹ Here Hopkins gave the example of Germany in which no one state (or even the emperor) could bind the rest of the states; only the imperial diet in which they were all represented could. But, Hopkins rejected the idea of colonial representation in Parliament as unworkable. In its place, he offered the idea of voluntary gifts to the Crown, which the colonists had “cheerfully” granted in the past, and which were preferable to compelling them by an “unconstitutional method.”Footnote ³²

Unlike Hopkins, Richard Bland's An Inquiry into the Rights of the British Colonies defended colonial rights solely on the basis of the law of nature.Footnote ³³ Indeed, unlike previous colonial spokesmen, he made a sharp distinction between the constitution of Great Britain (in which, Parliamentary spokesmen argued, there were unrepresented subjects who were still bound by Parliamentary laws) and that of the empire. In Bland's view, the constitution of the realm was not a guide to the relationship between the colonies and the metropole, for “the colonies in North America” were “founded by Englishmen” in “this uncultivated and almost uninhabited country,” and “without any expence to the nation.”Footnote ³⁴ Because we “can receive no Light from the Laws of the Kingdom, or from ancient History, to direct us in our Inquiry,” Bland argued, “we must have recourse to the Law of Nature, and those Rights of Mankind which flow from it.”Footnote ³⁵ According to Bland, “Men in a State of Nature are absolutely free and independent of one another as to sovereign jurisdiction, but when they enter into a Society, and by their own Consent become Members of it, they must submit to the Laws of the Society according to which they agree to be governed.” According to Bland, this right existed because “their Submission to the publick authority of the State, do not oblige them to continue in it longer than they find it will conduce to their Happiness, which they have a natural Right to promote. This natural Right remains with every Man, and he cannot justly be deprived of it by any civil Authority.”Footnote ³⁶ For Bland, then, when

Bland applied these normative claims to the settlement of America, arguing that the English colonists had exercised their natural right to exit the realm and establish new polities on the far side of the Atlantic. Bland then claimed that they had chosen to make a compact with the English king, who granted them a royal charter with all “the rights and privileges of Englishmen,” in return for which they had expanded his empire. According to Bland, under the terms of the charter, they “were respected as a distinct State, independent, as to their internal Government, of the original Kingdom, but united with her, as to their external Polity, in the closest League and Amity, under the same Allegiance, and enjoying the Benefits of a reciprocal Intercourse.”Footnote ³⁸ Moreover, Bland noted, when the first colonists had ventured across the Atlantic, America “was possessed by a savage People, scattered through the Country, who were not subject to the English Dominion, nor owed Obedience to its Laws.”Footnote ³⁹ Given that America was unoccupied save for the “savage” and therefore stateless Native Americans, the original colonists faced no barriers to the exercise of their natural right to choose the form of government they wanted to live under.

Bland however equivocated about the central issue of Parliamentary sovereignty, conceding that the “Colonies are subordinate to the Authority of Parliament,” which was “without doubt, supreme within the body of the kingdom,” and “cannot be abridged by any other power.” But he did not think that Parliament could violate the colonists' right of “directing their internal government by laws made with their own consent”Footnote ⁴⁰ For Bland, “Great” as “the Power of Parliament … is” “it cannot constitutionally deprive the People of their natural Rights; nor, in Virtue of the same Principle, can it deprive them of their civil Rights, which are founded in Compact, without their own Consent.”Footnote ⁴¹ And indeed, he came close to sanctioning a right of resistance to Parliament, claiming that it would be in a state of war with the colonists if it violated their rights. However, Bland then backed away from this radical stance, conceding Parliament's authority (based on precedent going back to the Restoration) to regulate the trade of the empire, and counseling more petitions as a mean of redressing colonial grievances.

The pamphlets of Hopkins and Bland, along with the resolves of the colonial assemblies and a specially constituted pan-colonial congress, contain strong evidence for the existence of a coherent and widely shared understanding of rights in British North America in the first phase of the imperial crisis. All of the colonies insisted that Parliament had no right to tax them for revenue of any sort, maintaining that if this right were violated it would lead to the undermining of other important rights, most centrally of individual colonists to property and, more broadly, to liberty. These rights were also seen as inherent in each English subject—they were a “birthright” and not a “privilege” that could be revoked by Crown or Parliament. Some colonial spokesmen also held that the rights of Englishmen were equivalent to (or were an expression of) the rights of mankind.

The colonists also argued that their individual rights as Englishmen (or as men) entailed a right to an “internal” governing authority in which they could pass laws for themselves immune from the jurisdiction of the king and Parliament. On this view each of the colonies constituted a “free state” as the New York assembly put it in 1764. This internal autonomy, though subordinate to Parliament's authority to regulate imperial relations, was seen as crucial to the protection of the colonists' individual rights to liberty and property, for only by having a say in the taxes imposed on them and, crucially, the laws that bound them could they be truly free. And finally, the colonies grounded their rights in the risk-taking and labor required to settle America, which, they claimed, was “wilderness” inhabited by “savages” before they arrived. This depiction of America as an alien place outside the realm of England, and thus outside the jurisdiction of the common law at the time of first settlement, would become an increasingly important argument in the imperial crisis as it enabled the colonists to base their case against the king and Parliament on the natural rights of men in a state of nature rather than on the rights of Englishmen.

III. The Townshend Duties Crisis, 1767–1770

The repeal of the Stamp Act in early 1766 was followed by the passage of the Declaratory Act which underlined the emerging Blackstonian consensus that Parliament had “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.”Footnote ⁴² And the new ministry, led by Charles Townshend, levied a new round of duties in the spring of 1767 on the mistaken belief that the colonists only objected to internal taxes like those levied in the Stamp Act but not to external taxes such as the customs duties that they had long been paying as part of the Navigation Acts. Townshend planned to use the money raised by his new import duties to pay for the salaries of the colonial governors and other royal officials. By doing so, he intended to make the executive power of the Crown independent of the legislative power of the colonial assemblies.Footnote ⁴³ Moreover, these new duties would be collected in America by an American Board of Customs Commissioners headquartered in Boston whose salaries would be paid out of the monies they collected.Footnote ⁴⁴ The following year, four new vice-admiralty courts were established in the major ports.Footnote ⁴⁵ The ministry also decided to move the troops who had been guarding the Proclamation line in the west into the cities in order to better assert Parliament's authority.Footnote ⁴⁶ And finally, in the summer of 1767, the ministry passed an act suspending the New York assembly, which, in contravention of the Quartering Act, had refused to provide the troops in the colony with sufficient shelter and supplies.Footnote ⁴⁷

Although no pan-colonial congress met to protest Townshend's policies, there was a widespread campaign to boycott British goods, which culminated in nonimportation and nonconsumption agreements enforced by local committees throughout America.Footnote ⁴⁸ In Massachusetts in early 1768, the assembly, at the instigation of Samuel Adams, sent a circular letter to the other colonies protesting the new duties on the grounds that “it is an essential, unalterable right in nature, engrafted into the British constitution, as a fundamental law … that what a man had honestly acquired is absolutely his own” and “cannot be taken from him without his consent.” The circular letter also expressed concern that Townshend's plan to pay the salaries of the governors, judges and “other civil officers” would “endanger the happiness and security of the subject.” And it went on to state that “American subjects” had these rights “exclusive of any consideration of charter rights”; rather, they had “natural and constitutional” rights as “free men and subjects.” The circular letter also insisted that the constitution of “free states” was “fixed.”Footnote ⁴⁹

The most widely read colonial attack on the Townshend Act came from the pen of John Dickinson, who had played an important role in the Stamp Act Congress. In a series of Letters from a Farmer in Pennsylvania published in colonial newspapers in 1767 and 1768 (and then reprinted as a pamphlet), Dickinson insisted that the Townshend duties were in fact taxes (despite their name) because they were enacted “for the sole purpose of levying money,” rather than to regulate trade within the empire. And, like the opponents of the Stamp Act, he responded to the ministry with “a total denial of the power of Parliament to lay upon these colonies any ‘tax’ whatsoever.” Dickinson also laid out the larger threat to liberty posed by taxation without consent, arguing that the monies Parliament would collect could be used for the creation of a pliant judiciary (which served at pleasure), the payment of the salaries of royal governors (freeing the executive from the control of the colonial legislatures), and the funding of a “standing” (that is, permanent) army in the colonies, all of which, he argued, would be fatal to the survival of a “free state.”Footnote ⁵⁰

Other opponents of the Townshend Act pursued the more radical natural rights arguments that Bland had laid out in his opposition to the Stamp Act. One of the most sophisticated was the pamphlet of Dickinson's fellow Pennsylvanian, William Hicks, The Nature and Extent of Parliamentary Power Considered, originally written just before the repeal of the Stamp Act, but updated in 1768 to include a consideration of the measures passed by Townshend.Footnote ⁵¹ Hicks based his opposition to the Townshend Acts on “that equality which we have received from nature, and which we find so firmly supported by the laws of our mother country.”Footnote ⁵² Moreover, Hicks argued, when the settlers “crossed the Atlantic to settle the deserts of America, they bro't with them the spirit of the English government.”Footnote ⁵³ Once in America and thus unable to be represented in Parliament, they had applied to “their Prince for such protection and assistance as might raise them to an equality with their brethren of England.”Footnote ⁵⁴ As a consequence, the colonists were only subject to laws made “by regular agreement with the deputy of the Crown.” And it followed from this that “the Lords and Commons of England” cannot “covenant with the Crown for the limiting and restraining our natural liberty.”Footnote ⁵⁵

By arguing that the colonists had a natural right of equality, which they had exercised by making a contract with the Crown, Hicks was able to deny Parliamentary authority in the empire tout court. In its place, he offered an explicitly federal vision of the empire—the colonies were, for Hicks, “so many different counties of the same kingdom,” which, because they were unable to be represented in the “general council,” were governed by their own assemblies with the concurrence of the king. In such an arrangement, “the restraining power lodged in the Crown” will “insure” that this “policy” was conducive to the general good. After all, Hicks claimed, “we cannot suppose that a wise and just Prince would ever consent to sacrifice the interest and happiness of any one part to the selfish views of another.”Footnote ⁵⁶

IV. From Tea Party to Revolution

Due to widespread opposition in the colonies, the new ministry under Lord North repealed all of the Townshend duties in the spring of 1770, save the one on tea, which North intended to use to pay the salaries of royal officials in the colonies.Footnote ⁵⁷ Three years of commercial prosperity and relative calm ensued. During this time, the colonists imported tea and paid the duty that Townshend had levied in 1767. The Board of Customs Commissioners, however, remained in place; the Royal Navy continued to patrol the coasts looking for smugglers; and British troops stayed in Boston.

But when the North ministry, in a bid to help the financially troubled East India Company, passed the Tea Act in 1773, opposition in New York and Philadelphia was so strong that the tea was never brought ashore. In Boston, however, the governor refused to allow the ships to leave the harbor. In response, a mob dumped the tea in the harbor, ensuring that the tax would not be paid.

In response to Boston's Tea Party, Parliament passed legislation known collectively as the Coercive Acts (March–June, 1774). The first closed the port of Boston to all commerce until the East India Company was compensated for the loss of tea. The second altered the Massachusetts charter for the first time since 1691, giving the king the power to appoint the upper house of the colony's legislature. It also allowed the governor to appoint all provincial judges and sheriffs, and limited the number of town meetings to one a year without the permission of the governor. A third act provided for the removal out of the colony of any magistrate, soldier, or customs official indicted for a capitol offence and unlikely to receive an impartial trial in a colonial court. A fourth act provided for the quartering of troops in the colonies. At the same time, General Thomas Gage, who was the commander-in-chief of British forces, also became the civil governor of the colony.Footnote ⁵⁸

Although the Coercive Acts were directed solely at Massachusetts, they radicalized the opposition to Britain in all of the mainland colonies. In response, James Wilson (1742–1798), a recent émigré from Scotland, and Thomas Jefferson (1743–1826), a young Virginia lawyer, denied Parliamentary authority over the colonies altogether. In doing so, they crystallized the vision of the empire based on natural rights and internal autonomy that had been developing since the early 1760s, adding to it the claim that the colonies were independent states.

In his 1774 pamphlet Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, Wilson rejected the Coercive Acts on the grounds that “All men are, by nature, equal and free.” In particular, he insisted that all men have “rights” to which they are “entitled by the supreme and controulable laws of nature,” as well as “the fundamental principles of the British constitution.”Footnote ⁵⁹ Chief among these was the right to consent to all laws that bound them. As Wilson put it: “No one has a right to any authority over another without his consent: All lawful government is founded on the consent of those, who are subject to it.” In Wilson's view, “Such consent was given with a view to ensure and to encrease the happiness of the governed above what they could enjoy in an independent and unconnected state of nature.” And because “This rule is founded on the law of nature,” Wilson argued, “It must control every political maxim: it must regulate the Legislature itself. The people have a right to insist that this rule be served; and are entitled to demand a moral security that the Legislature will observe it.”Footnote ⁶⁰

Given this, Wilson denied that Parliament had a “supreme irresistible uncontrolled authority over” the colonies.Footnote ⁶¹ Indeed, since all just authority derived from the people's natural rights, Parliament could have no authority over Britons who had not consented to its laws. To argue otherwise, Wilson insisted, implied that one group of subjects could bind another without their consent, even though both had equal natural rights.

Jefferson's 1774 Summary View of the Rights of British America made the same argument. According to Jefferson:

Indeed, Jefferson argued, “America was conquered” and “her settlements made, and firmly established, at the expence of individuals, and not of the British public.”Footnote ⁶³ It was “for themselves they fought, for themselves they conquered, and for themselves alone they have a right to hold.” Britain, Jefferson argued, did not expend a “shilling” to assist the American colonies until after they were firmly established, and had become commercially valuable.Footnote ⁶⁴

After these “settlements” had been made “in the wilds of America,” Jefferson contended that the “emigrants” chose “to adopt that system of laws under which they had hitherto lived in the mother country, and to continue their union with her by submitting themselves to the same common sovereign, who was thereby made” the sole link connecting “the several American states.”Footnote ⁶⁵ In place of Parliamentary sovereignty, then, Jefferson envisioned a federal empire, an association of “states” wherein the Crown held the executive power. But if the Crown acted arbitrarily, Jefferson argued, “the power reverts to the people, who may exercise it to unlimited extent, either assembling together in person, sending deputies, or in any other way they may think proper.”Footnote ⁶⁶

Jefferson's Summary View was written for the Virginia delegates to a new pan-colonial Continental Congress, the first such body to meet since the Stamp Act Congress in 1765. After convening, the delegates rejected the Pennsylvanian Joseph Galloway's (1731–1803) plan of union, which would have created a legislature with representation from all of the colonies, overseen by a president appointed by the Crown.Footnote ⁶⁷ The Congress also constituted a committee to draft a statement of rights, which led to a wide-ranging debate about the basis of colonial rights.Footnote ⁶⁸ Richard Henry Lee (1733–1794) of Virginia, argued that Congress should make its claim “upon the broadest bottom, the ground of nature,” for, according to Lee, when “our ancestors” arrived in America, they “found … no government.” Lee was also adamant that rights to “Life and liberty” cannot “be given up when we enter society.” However, Lee did not see these natural rights as inconsistent with those based on the common law, and he argued that the Congress should rest its claims on a “fourfold foundation: on nature, on the British constitution, on charters, and on immemorial usage.” John Jay (1745–1829) of New York agreed that it was “necessary to recur to the law of nature” as well as “the British constitution to ascertain our rights,” adding that the colonists originally had “a right to emigrate” and “erect what government they please.” As for whether the settlers could eschew their allegiance, Jay argued that “there is no allegiance without protection.”Footnote ⁶⁹

However, several prominent members of the committee wanted Congress to make its case solely on the basis of the English rights. John Rutledge of South Carolina held that subjects could not “alienate” their “allegiance,” and thus the original emigrants to America did not have the right to establish “what constitution they please.” For Rutledge, colonial claims were “well founded on the British constitution, and not on the law of nature.” James Duane (1733–1797) of New York concurred, holding that “the law of nature” was but “a feeble support,” and that the Congress should rest its case on “the laws and constitutions of the country from whence we sprung.” The future Loyalist, Joseph Galloway, insisted that he could not find “the rights of Americans” in the “state of nature,” but only in “political society”; that is, in “the constitution of the English government.”Footnote ⁷⁰

Like many of the earlier colonial petitions and resolves, the Congressional Declaration of Rights which this committee produced put these two kinds of rights alongside each other, seeing no necessary incompatibility between them. It held that “the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts” had rights to “life, liberty and property,” which they “have never ceded to any sovereign power.” Moreover, their ancestors, “who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural-born subjects within the realm of England.” Since the “foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council,” and since they “cannot properly be represented in British Parliament,” Congress claimed that the colonists “are entitled to a free and exclusive power of legislation in their several provincial legislatures,” subject only to the “negative” of the “sovereign, in such manner as has been heretofore used and accustomed.”Footnote ⁷¹ The Declaration denounced the presence of a standing army in the colonies, and reiterated the colonists' right to jury trials, and to the benefit of such Parliamentary statutes as they found “by experience” to be suitable to local circumstances. The Congress did concede that Parliament had the authority to regulate colonial trade, but made it clear that this was only with the colonists' “consent,” and only when its acts were truly for the “commercial advantage” of the “whole empire.”Footnote ⁷²

In the winter of 1775, after the Congress had adjourned, John Adams (1735–1826) penned the most comprehensive defense of colonial rights in the entire imperial crisis.Footnote ⁷³ Writing as Novanglus, Adams argued that the great “defect” in the imperial constitution was that “colonization” was “casus omissus at common law.” That is, “no provision” had been “made in this law for governing colonies beyond the Atlantic, or beyond the four seas, by authority of parliament; no, nor for the king to grant charters to subjects to settle in foreign countries.”Footnote ⁷⁴ As a result, instead of invoking principles of “law, or justice, or reason,” Britain was asserting its sovereignty on the basis of “mere power,” and was preparing to “resort to war and conquest” in a vain attempt to subdue the colonies.Footnote ⁷⁵ If this was the case, Adams asked, how then “do we New Englandmen derive our laws”? His answer was unequivocal: “not from Parliament, not from common law, but from the law of nature, and the compact made with the king in our charters.” Furthermore, Adams argued, the King had no legitimate authority in America that was not derived from that of the colonists. This was because America was “not a conquered, but a discovered country.” That is, it “came not to the king by descent, but was explored by the colonists. It came not by marriage to the king, but was purchased by the colonists of the savages. It was not granted of the king by his grace, but was dearly, very dearly earned by the planters, in the labor, blood, and treasure which they expended to subdue it by cultivation.” As a result, the rights of the colonists stood “upon no grounds, then, of law or policy, but what are found in the law of nature, and their express contracts in their charters, and their implied contracts in the commissions to governors and terms of settlement.”Footnote ⁷⁶

For Adams, then, the legal foundation of the empire was based on the law of nature and not common law—indeed, in his view, “English liberties” were “but certain rights of nature, reserved to the citizen by the English constitution,” rights which “cleaved to our ancestors when they crossed the Atlantic.” And, Adams argued, these rights would “have inhered in them if, instead of coming to New England, they had gone to Otaheite or Patagonia, even although they had taken no patent or charter from the king at all.” Adams even went so far as to claim that the original colonists “had a clear right to have erected in this wilderness a British constitution, or a perfect democracy, or any other form of government they saw fit.”Footnote ⁷⁷

Following the clashes between the colonial militiamen and the British soldiers at Lexington and Concord in the spring of 1775, the Continental Congress prepared for war, putting George Washington (1732–1799) in charge of an army, and issuing a declaration, written by both Thomas Jefferson and John Dickinson, justifying the taking up of arms.Footnote ⁷⁸ At the same time, however, the Congressional moderates led by John Dickinson, insisted on sending one last petition to the King seeking reconciliation. But in August, two days after he received this Olive Branch petition, George III issued a royal proclamation declaring the colonies in open rebellion.Footnote ⁷⁹ And in December, the king assented to the Prohibitory Act which ended all trade with the colonies and sanctioned the seizure of their ships on the high seas as if they were “open enemies.”Footnote ⁸⁰

The king's intransigence emboldened those in Congress who wanted to secede from the empire.Footnote ⁸¹ In May 1776, Congress passed a resolution which accused the king and Parliament of excluding “the inhabitants of these united colonies from the protection of his Crown.” It then instructed the colonies to suppress all royal authority, and to “adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents …”Footnote ⁸² And on June 7^th, responding to instructions from the Virginia House of Burgesses, its senior delegate, Richard Henry Lee, moved “that these United Colonies are, and of right ought to be, free and independent States …”Footnote ⁸³ This claim was echoed in the Declaration of Independence the following month which based the case for independence on the “Laws of Nature and of Nature's God,” and on the unalienable natural rights to life, liberty, and property which flowed from them.Footnote ⁸⁴

The Declaration was an eloquent summation of the colonial case against British authority, its concern for the protection of individual rights to life, liberty, and property—with the right of all individuals to consent to any tax or law which bound them being important corollaries of these more fundamental rights—echoing the arguments in the many petitions, resolves and declarations issued by the colonists in the fraught years between 1764 and 1776. From the beginning of the imperial crisis, these rights were understood by colonial spokesmen to be “inherent” in individuals, something which was a “birthright” of all “freeborn” Englishmen, the product of a long historical inheritance (hence the frequent use of the adjective “ancient”) and thus sanctified by time. But as we have seen, the idea of individual natural rights appeared in the early protests against the Stamp Act and gradually became more central to the colonial case against the king and Parliament. Both ways of thinking about rights were concerned with the individual and with his right to be free in person and property from arbitrary authority, and both understood rights as grounded in something more fundamental than mere positive law (whether it be “nature,” or “custom,” or “history”). The widespread claim that English rights were the subject's “birthright” was also compatible with the law of nature, as both saw rights as inhering in the individual rather than being the grant of a sovereign authority. As well, both natural law and common law placed a premium on consent as the foundation of all legitimate political authority; and they were as one in rejecting the idea that law was the mere will or command of the sovereign. Contrary to the claims of some recent scholarship, none of the colonial writings in the imperial crisis spoke of these rights as subordinate to a set of overarching or binding natural law duties.Footnote ⁸⁵ Nor does a close reading of the colonial position suggest that they were arguing (in the Declaration and elsewhere) primarily for corporate or group rights (the rights of “states”) as against the rights of individuals; rather, the colonists saw the autonomy which they claimed for their colonies as necessary for the protection of the individual rights of the inhabitants of those jurisdictions.Footnote ⁸⁶

While the product of European and English political and legal theory, the idea of rights articulated in the imperial crisis was also shaped by peculiarly American circumstances. As we have seen, the colonists argued that in the extra-European world, which they viewed as a “wilderness” surrounded by hostile “savages,” the law of nature (and the natural rights that flowed from it) were the normative standard for judging political conduct.Footnote ⁸⁷ Moreover, the claim that the colonists had taken their individual rights across the Atlantic (and thus out of the realm and the ambit of the common law) also reinforced the idea that they had these rights independent of any system of domestic or municipal law. On this reading of the imperial crisis, the shift to natural law and natural rights was not the product of a last minute “leap out of history” (and thus away from the customary confines of English constitutionalism) on the eve of the Revolution.Footnote ⁸⁸ Rather, the adoption of natural rights by British American elites was integral to the jurisdictionally contested imperial world they inhabited. On this view, the ultimate source of political and legal authority in the empire was the natural right of all men to leave the state they inhabited and establish a new one elsewhere.Footnote ⁸⁹

This adoption of natural rights was, of course, radical in the sense that it supplied a justification for a total renunciation of royal authority, which the English constitution could not do.Footnote ⁹⁰ But it was also perfectly compatible with the voluntary adoption of English rights by subjects situated in this state of nature, as many colonists began to argue in the crucial years before independence. Moreover, the new republican state constitutions formed in the crucial years between 1776 and 1780 contained preambles with stirring declarations of natural rights, while the body of these documents was largely composed of claims to English legal rights.Footnote ⁹¹