A Constitutional History of the United States Chapter X - The Philosophy of the Revolution and the Declaration of Independence byMcLaughlin, Andrew C.
America was the child, the developed child, of seventeenth-century
England. She had grown strong and self-reliant. She had breathed the air of a
new world; she had been shaped in part by her experiences on a virgin
continent; but to understand her character, we need to understand her
inheritance almost as much as the environment in which she matured. There is
truth in the exaggerated assertion that in the Revolution (1765-1776) the
England of the seventeenth century arose to combat the England of the
eighteenth; and there is truth in the declaration that America separated from
Britain in the seventeenth century rather than in the second half of the next
century. The simpler statement is that America was influenced in the course of
her development by the thinking and by the struggles to liberalize government
in the days of the Stuarts, days which saw a rebellion based on an announcement
of rights beyond the reach of kingly prerogative, days which saw the execution
of one king, and saw also the dethronement of another because he had broken the
original contract between king and people. We are not likely to overemphasize
either the fact of the English rebellion and the later peaceful revolution
(1688) or the thinking that underlay revolt.
Though in the later days its most popular utterances came from a son of
Virginia, and though much of its philosophy was a possession common to America
as a whole, this seventeenth-century thinking was especially cherished by the
New England colonists. This was so in part because the early New Englanders
were the offspring of the protest against Stuart absolutism; perhaps also
because Massachusetts peculiarly thought of herself as self-founded and not a
child of the empire; but certainly because the thinking of the seventeenth
century Was embedded in church polity and in theology.
Fundamental in New England religious thought were the following: (1)
there is a divine law superior to all other and binding on every creature, on
ruler and ruled; (2) the individual man before entering church relationship is
an individual separate and distinct; (3) churches are formed by the consent and
agreement of men; the basis of the church is covenant; churches and church
government are not superimposed but created by the people composing the
churches; (4) the Ruler of the universe, the embodiment and source of unvarying
justice and duty, had bound Himself by covenants, by promises. The interlacing
of political and religious thinking was very marked; it would be more nearly
correct to say that the two modes of thought were in reality only two
manifestations of one. Elementary principles of political philosophy were kept
alive, not alone by recollection of the seventeenth-century struggles for
liberty or by the actual methods of forming churches, but also by the sermons
of the preachers, inculcating political and ecclesiastical
doctrine.[1]
During the seventeenth century in England there was so much practical as
well as purely theoretical presentation of doctrines concerning the origin of
state and government, that it is misleading to select any one writer or
politician or any one series of events as illustrative.[2] But among
all the writers of that century, John Locke stands out above the rest. He did
not, however, originate his doctrines, far from it; doctrines of like character
had been put forth in previous centuries; for, as a matter of fact, men had
often questioned the basis of governmental authority, and they had announced
the all-prevailing divine law as superior to human enactment. Especially, in
the hundred years before Locke wrote his famous second essay on government,
Englishmen had been talking about and for a time fighting about those very
problems.[3] Locke's argument in his second essay, written just
after the "glorious revolution" of 1688, had continuing effect, partly because
of its directness and simplicity, and partly because it came, for England at
least, at the end of a controversy and furnished the basis of parliamentary
authority as opposed to divine right of kings. His essay deserves our attention
because it was used by the men of our Revolution. When men at that crisis
thought and spoke in the terms of Locke, they naturally supposed they were
relying on an authority, one of the fathers, whose words could not be
meaningless to the men of England in the later eighteenth Century. In fact,
though a parliamentarian, to refute colonial assumptions, could refer to Locke
with approval — as the Scripture is said to be cited by the arch-enemy of
mankind — he could not have been entirely at ease when the philosophy of
the renowned essay was quoted against him. A reference by a colonist to Locke's
writings must not be considered a mere reference to a bookman who had been
speculating about government; he was thought of as the expositor of the
foundations of English constitutionalism, an authority on constitutional law.
When the colonists of the Revolutionary days referred to him, they thought of
him as putting forth, not theories of what ought to be, but
pronouncements of what actually was; in his words and in the words of
many other liberal thinkers of the seventeenth century they saw pronouncements
of the real basis on which the rights of Englishmen were founded. And
all this is important because it is a matter of great consequence that the
American Revolution had, despite much social turmoil, the quality of conserving
the old and not merely blasting it; it is important above all because the
Revolutionists did more than announce doctrines and quote authorities; they
took the theories of the philosophers and the declarations of men like Locke
and wove them into an actual constitutional structure. Locke and others like
him were to the Americans more than visionaries.[4]
Seeking the source of government, as a method of ascertaining the extent
of its authority, Locke started, as did many others before and after him, by
declaring that there was a time when men lived in a state of nature in which
there was no government. All men were in "a state of perfect freedom to order
their actions, and dispose of their possessions and persons" as they saw fit.
Men were also in a state of equality; there was no precedence. And yet it was
not a state of license, though it was a state of liberty; for there was a law
of nature which taught that no man should harm another "in his life, health,
liberty or possessions...." But each man was judge in his own case; and so men
turned to the establishment of government to avoid the inconveniences by which
they were beset. They did not, however, set up government to be absolute over
them; "he who attempts to get another man into his absolute power does thereby
put himself into a state of war with him...." Man had liberty in nature, and
had only the law of nature for his rule; the "liberty of man in society is to
be under no other legislative power but that established by consent in the
commonwealth...." As liberty existed before government, and as the right of man
to his life existed before government, so also property antedated government.
Property, therefore, had natural or divine sanction.
But when man leaves his natural state, "he authorizes the society, or
which is all one, the legislative thereof, to make laws for him as the public
good of the society shall require," and this "puts men out of a state of Nature
into that of a commonwealth...." Though Locke was intent upon upholding the
legislative power, his main theme was established security for fundamental
natural rights under government. "If man in the state of Nature be so free as
has been said, if he be absolute lord of his own person and possessions, equal
to the greatest and subject to nobody, why will he part with his freedom, this
empire, and subject himself to the dominion and control of any other power? To
which it is obvious to answer, that though in the state of Nature he hath such
a right, yet the enjoyment of it is very uncertain and ... the enjoyment of the
property he has in this state is very unsafe, very insecure. This makes him
willing to quit this condition ... and it is not without reason that he seeks
out and is willing to join in society with others who are already united, or
have a mind to unite for the mutual preservation of their lives, liberties and
estates, which I call by the general name — property. The great and chief
end, therefore, of men uniting into commonwealths, and putting themselves under
government, is the preservation of their property...." [5]
Power, Locke declares, "in the utmost bounds of it is limited to the
public good of the society.... Thus the law of Nature stands as an eternal rule
to all men, legislators as well as others." [6] Having in mind the
security of person and possessions, he also declares that not even the
legislature can assume the power to rule by "extemporary arbitrary decrees, but
is bound to dispense justice and decide the rights of the subject by
promulgated standing laws, and known authorized judges." [7]
"Absolute arbitrary power, or governing without settled standing laws, can
neither of them consist with the ends of society and government...."
[8] He was thinking of the eternal and unvarying law of nature and
of nature's God, and, in addition, the need of established and open principles
as a means of giving security.[9]
How far Locke goes in indicating the principles of legally limited
government can especially be seen in his reference to a well-recognized
principle of the common law — an administrative officer, acting beyond his
warrant, may be resisted — and he inquires why this principle is not
applicable to the highest magistrate in the land. We find in this the kernel of
the doctrine later firmly embedded in American constitutionalism: no one has a
right to enforce an unconstitutional law. There are legal bounds to
governmental authority. Though we should err in attributing to Locke alone the
origin of this idea, we do not err in finding in his philosophy — closely
associated as it was with practical politics and with certain established
principles of English liberty — a popularization of certain essential
principles which were prominent at the time of the American Revolution and of
great subsequent importance. That a law contrary to natural right and justice
is no law at all was no new doctrine.[10]
It may be at times necessary to transcend the law. The power to act
"according to discretion for the public good ... is called
prerogative...."[11] But "Wherever law ends, tyranny begins, if the
law be transgressed to another's harm...." [12] To go beyond the law
for the good of the people, is, then, prerogative; to do so for the injury of
the people is tyranny. Who is to judge what is good and what is harmful? That
is the pivotal question. To determine this, there must under some circumstances
be an "appeal to Heaven", and the people have the right to determine whether
this appeal to the final arbitrament of force is justified or not. This right
of determination they cannot surrender, "God and Nature never allowing a man so
to abandon himself as to neglect his own preservation." [13]
Locke's argument leads him to the right of revolution, but it must not
be conceded that the end is turmoil. May then the prince be opposed, may he be
resisted as often as anyone shall find himself aggrieved? This would leave
"nothing but anarchy and confusion." [14] But no such consequence is
admissible because man has the right to oppose only "unjust and unlawful
force." This right of revolution, this final resort to force, this right to
rise not against law but against lawlessness, to rise not against legitimate
but illegitimate authority, naturally was and remained a cardinal
doctrine.[15]
And still, someone may declare that, as the people may dissolve a
government, as this is their final right, the very hypothesis lays a foundation
for frequent rebellion. The answer to this assertion is: "cry up" your
governors as much as you will "for sons of Jupiter" — adopt, that is to
say, your theory of divine right — and you shall still have rebellion,
because people will not endure the extreme of misery; furthermore, revolutions
do not occur on account of mere "slips of human frailty"; but "a long train of
abuses, prevarications, and artifices, all tending the same way," may arouse
the people to put the rule into hands that will secure to them the ends "for
which government was at first erected...."[16] Thus we see, when
once it be admitted that there are limits on government, a critical question
remains: who is to judge whether the limits have been exceeded or not? That
proved to be in reality a perplexing question, not to be forgotten in the
history of American constitutional doctrine. Locke did not foresee the
development of popular government and its mechanism; nor did he see the full
implication of his assertions; but implications there were; and in the later
developments of American institutions we discover a partial solution of this
pressing and imperative question in the full recognition of judicial authority
as well as in the right by institutional processes to reorganize
government.
The idea that an act contrary to the fundamentals of the constitution
(natural justice, natural equity, the law of God, and the law of nature) was no
law played its part in the American Revolution. It was notably influential in
New England where the ministers had frequently preached the doctrine of
covenant and the limits of governmental power. A cardinal illustration is the
sermon of Jonathan Mayhew which he preached in 1749-1750, the anniversary of
the death of Charles I;[17] the bold young minister ridiculed the
attribution of sainthood to the executed monarch, and denied the propriety of
calling the great rebellion of the seventeenth century by the name of
rebellion, for it surely was not unlawful to oppose acts of tyranny or to
refuse to obey a monarch who had "unkinged" himself by his own acts.
In looking over this revolutionary thinking of Locke and his disciples,
we discover some things especially notable in addition to those already
selected for comment: (1) though his whole line of argument grew out of
historical necessities and though it was applied to a practical problem, it was
at the same time in its nature very artificial, making no great effort to find
out whether government really did originate in compact. The artificial as
opposed to the realistic method is evident at every turn. (2) The basic
assumption is that men did make the state, that man existed as an individual
and that, by the conscious purpose of unrelated beings, a new comprehensive
being, a new entity, can come into existence. (3) As man existed in a state of
nature under natural law, as he was an abstracted being, it is possible to
build upon certain principles which are abstractly true, forever unchangeable;
those principles are not the product of experience; they are not of relative
validity but of absolute validity. We need not descant upon the value, in any
argument, of having absolutes to deal with — unchanging and unchangeable
principles. (4) There is in Locke's reasoning no conception of a body politic
— that is to say, a conception agreeable to modern metaphysical political
philosophy — a single coherent though not fully-organized body laying down
its will authoritatively concerning its own structure and the limits of
government.
Now, central in all this thinking is the foundation or source of
authority by consent of the governed. By inevitable logic, as well as by pious
thinking, governments were bound by the purposes of the compact. The whole idea
of limited government, bound by law, is implicit, if not absolutely obvious, in
the whole theory. We have already noticed the announcement of natural rights in
sundry American arguments of the Revolutionary period. Natural and fundamental
rights are conspicuous in the declarations of the Massachusetts representatives
(1768). The extent to which they were to be taken seriously, when the people
came to found their new institutions, will be spoken of later. At the present,
the purpose is to point out briefly the nature and the logical effect of the
assumption that men existed before government and had rights which were not
granted by government (one of the conspicuous principles of American
constitutionalism).[18] These doctrines were used as the basis of
resistance to Britain, but they are to be taken into account not simply because
they partly explain the American Revolution. It is, in fact, rather difficult
— though perhaps the learned may succeed — to interpret the course of
American constitutional history or American constitutional law without an
understanding of the compact philosophy. One illustration must suffice: in a
decision rendered by the Supreme Court of the United States in 1875 we find
these words: "The theory of our governments, State and National, is opposed to
the deposit of unlimited power anywhere.... There are limitations on such power
which grow out of the essential nature of all free governments. Implied
reservations of individual rights, without which the social compact could not
exist, and which are respected by all governments entitled to the
name."[19]
By the spring of 1776, the pretense or the appearance of waging war as
subjects of the king was scarcely tenable; many there were who still shrank
from formal announcement of independence; but when the Continental Congress
adopted resolutions recommending the establishment of governments in the
various colonies, it was apparent that they were to be considered as no longer
colonies but states. The transmutation of colonies into totally self-governing
commonwealths was the heart of the Revolution as a practical fact.
In May a convention in Virginia — an extra-legal body —
instructed the colony's delegates in Congress to propose the declaration that
the colonies were free and independent and to give the assent of the colony to
such a declaration. They were also directed to give assent to any measures
which might be thought proper for forming foreign alliances and a
"Confederation of the Colonies," with the distinct proviso, however, that "the
power of forming Government for, and the regulations of the internal concerns
of each Colony, be left to the respective Colonial Legislatures."
[20]
Richard Henry Lee of Virginia, offered in Congress, June 7, 1776, the
following resolutions:
"Resolved, That these United Colonies are, and of right ought
to be, free and independent States, that they are absolved from all allegiance
to the British Crown, and that all political connection between them and the
State of Great Britain is, and ought to be, totally dissolved.
"That it is expedient forthwith to take the most effectual measures
for forming foreign Alliances.
"That a plan of confederation be prepared and transmitted to the
respective Colonies for their consideration and approbation."
Not all the delegates were as yet convinced that the time had come to
take this final and irrevocable step. If New England was restless and its
leaders out of patience with discussion and delay, and if Virginia and one or
two other colonies were ready and eager to move on, the large and powerful
colonies of New York and Pennsylvania were still hesitating. Without unanimity
of sentiment and without coöperation among the colonies from one end of
the land to the other, the announcement of independence would be peculiarly
bold and perhaps foolhardy.
In other colonies there were controversies; there were still differing
elements in each; one element was anxious for advanced measures; another was
holding back, afraid of independence or dreading the radicals and all their
works; a third was lukewarm, undecided, or even uninterested. No complete
picture of the situation is possible; any general statement is inexact. On the
whole, this is true: the naturally conservative elements of the population, the
well-to-do, the people who had most to lose from unsuccessful or perhaps from
successful rebellion, many of the merchants fearing "the mob" and the total
annihilation of their industry, were inclined to oppose the more eager and
radical elements.[21]
On the first day of July the subject of immediate announcement of
independence was discussed in the committee of the whole; the debate took up
most of the day but it was, John Adams said, "an idle mispence of time,"
because nothing was said that had not been said a hundred times before. Only
nine colonies were then prepared to take the final step. New York refused to
vote; South Carolina and Pennsylvania voted in the negative; the vote of
Delaware was divided. The Pennsylvania delegates were in a state of uncertainty
because their authority came from the legal assembly of the colony, while the
resolution favoring independence was passed by another body. In South Carolina
the advocates of separation from the mother country were met by strong
opposition, and the colony's delegates in Congress could not be sure of their
right to vote for separation or of the support of the colony should they do so.
The next day, however, the situation cleared. Caesar Rodney had hurried from
Delaware to Philadelphia in time for the crucial vote. A majority of the
Pennsylvania delegates decided to vote for independence, and the South Carolina
delegates made up their minds that they could take the same stand. So when on
July 2 the final vote was taken, only three delegates [22] are known
to have cast their votes in the negative. New York did not vote at all. The
formal Declaration was adopted July 4, and at a later time, August 2, it was
signed by the members of Congress.[23]
The Declaration was naturally and inevitably directed against George III
— inevitably because the time had come to break the bonds of allegiance
between king and subjects. Moreover, there was absolutely no reason for getting
involved once again in a confusing argument about the old question of
parliamentary authority. The supposition underlying the Declaration was that
the colonies then were and always had been free from any legal control by
Parliament. The king was charged in the Declaration with having given his
consent to "acts of pretended legislation". In light of the long preceding
contest concerning constitutional authority, there was no other reasonable
basis for the announcement of independence;[24] there were certainly
men in the Congress — John Adams and Jefferson for example — who
would not be ready to confess that it was necessary or proper to declare the
overthrow of parliamentary power.
The document is of very great moment in American history because of the
philosophy of government set forth in the opening paragraphs. Of that
philosophy we have already spoken. It was the philosophy — the political
thinking — of compact and natural rights, the philosophy which justified
rebellion or revolution against tyranny, which announced the principle of the
popular origin of government and proclaimed the doctrine that governments were
possessed of derived authority — a doctrine, then and now, of
pivotal importance in American constitutionalism. The passages in which these
principles were proclaimed were clear and powerful; they expressed the beliefs
and the theories held by the American people. Jefferson merely made use of
commonly accepted ideas concerning the origin and nature of
government.[25] It was not his duty to create a new system of
beliefs; and therefore to charge him with having no originality and with
indulging in airy phrases is, of course, quite foolish.
George III is stigmatized in the Declaration as a prince "whose
character is thus marked by every act which may define a Tyrant...." How, it
has been asked, can such a charge be justified? George was an obstinate,
perilously active, wrong-headed monarch, but no one can justly call him a
"Tyrant". In answer, one may ask a question in return — what, under the
circumstances, could Jefferson and his colleagues have said? Certainly not that
the king was a kindly father of his people. But in reality the propriety of
using the term "Tyrant" depends on the meaning of the word, and its meaning was
clearly defined in the very political philosophy which was embodied in the
Declaration: a tyrant is a ruler who goes beyond the law to the injury of the
people. With that definition in mind, no one desirous of independence would
strain and strangle over the word "Tyrant".[26] The Americans then,
according to this theory, were not lawbreakers; the king had become a
lawbreaker by disregarding the very ends for which government was established
— the good of the people.[27]
Earlier pages of this chapter contain a brief summary of the political
philosophy of Locke and of the Revolution; and that philosophy was presented in
condensed form and with astonishing skill in the Declaration. One aspect of the
subject merits special attention: "We hold these truths to be self-evident,
that all men are created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life, Liberty and the pursuit
of Happiness." These words would strike few men in those days as novel or
absurd. It remained for men of later times to ridicule the assumption of
natural equality. But doubtless Jefferson, like Locke, did not intend to assert
that each man was as strong, virtuous, and competent as every other; nor was he
desirous of announcing social, economic or political equality. There were,
however, certain great rights which man had in a state of nature — before
there was a government to which he must be obedient; of these rights, certain
ones were not surrendered and could not be surrendered. But this is not by any
means the whole of the matter; for the main thesis of Jefferson is that
governmental power is derived from the consent of the governed; government has
not inherent or intrinsic authority, but only granted or delegated authority.
The most important word in the Declaration is "deriving".[28]
In a state of nature there was equality; no one had the right to say yea
or nay to his neighbor; no one had the right to bid his neighbor do this or not
to do that. But government and political order were established by consent, and
the system of the original state of nature and of original equality
disappeared. Men must continue to be equal in the possession of fundamental
natural rights, for they would not have given up equality and freedom to put
themselves under absolute, arbitrary, and merciless rule; but, as the result of
compact, a superior came into existence; there existed one man or body
of men with authority to command; and those commands should be obeyed so long
as government kept itself within the limits which the original compact
implied.[29] Jefferson was not bent upon announcing to people who
were then engaged, or soon to be engaged, in framing constitutions that they
must provide for universal suffrage or must grant equality of either political
or economic power. He was primarily intent upon presenting a basis for
overthrowing the authority of King George.
The critical question, we may repeat, was how it came about that one
man, a monarch, or one set of men had been placed above other men with power to
issue orders, laws, and decrees; if governmental power was derived, if men
voluntarily and by consent had surrendered their original equality,
then, unquestionably, government was authoritative only when acting within the
limits of the compact and when guarding the natural rights of life, liberty,
and property. Before government was established, men were in a state of
equality; after government was established they were not; they gave up
their equality and subjected themselves to a superior; but this superior must
rule for the common good. This is the sum and substance of the philosophy of
Locke and of the Declaration of Independence.
The Declaration is not to be read as if it had no meaning for us save as
it permitted an excuse or a reason for separating America from Britain. It
contains doctrines which on their peculiarly theoretical side have partly lost
their cogency. The notion that the only way in which men can be legitimately
bound is by a promise, or something akin to promise and contract, is to-day not
quite orthodox political philosophy or quite the thinking of the common man. We
do not postulate a pre-social state of existence in which man was an isolated,
absolutely independent, and segregated atom. We think historically; we know how
governments did arise; we think of society as a living fact, even if it does in
some way establish a government by votes of individuals. But the significance
of the Revolution is lost if one does not see the Americans taking this
"compact" philosophy seriously, and if he does not see that the elementary
principle — the existence of individual rights which governments were
established to protect — has not lost its force in American constitutional
law.
This interpretation of the thinking of the Declaration should not imply
the absence of more radical or more advanced doctrines or impulses and desires
among the men of the Revolution, especially among those who in some of the
colonies had been most active in protesting against the established order of
things. Jefferson himself was prepared to attack the intrenchments of privilege
secured by law in the Old Dominion. Everywhere men who hitherto had been
ignored in colonial politics were forging to the front; they were pushing ahead
to new positions, in some cases demanding or assuming further political rights.
Some persons were envious of the more fortunate, and probably quite justly so;
they envied the possessors of large landed estates and they disliked the
economic domination of their owners. The Revolution, in part begotten by social
and economic discontent within the individual colonies, was moving on to its
inevitable conclusion — not to immediate social equality or to complete
economic equality, but to a greater degree of power and confidence in the main
body of the people. But that is a long story; its end was not reached in the
days of the war or for some decades thereafter. The movements that produced the
downfall of British rule, probably also the very philosophy on which the
Revolution was based as well as the struggle itself, broke down old traditions
and helped in carrying forward the principles of political equality and a
fuller realization of the worth and competence of the common man. Revolution
was working out its natural consequences; there lay ahead the inevitable
diminution of that presumption of superiority which was the dear possession of
social and economic leaders.
[1] Very valuable is A. M. Baldwin, The New England Clergy
and the American Revolution. One must weigh the fact that two treatises,
published in the early part of the eighteenth century from the pen of John
Wise, which contained distinct and detailed presentation of the theory of
compact, were republished in Boston in 1772, "and so eager was the perusal of
them, and so extensive the demand for their clear reasoning in favor of
democracy as the best government, that another edition, of which more than one
thousand copies were bespoken before its issue, was put to press in the same
city in the same year." H. M. Dexter, The Congregationalism of the Last
Three Hundred Years, As Seen in Its Literature, pp. 501-502.
[2] Of special usefulness in this matter is T. C. Pease,
The Leveller Movement.
[3] The long effort, though at times only an effort of a
secluded closet philosopher, to answer the great question — are there
limits on human authority? — is especially interesting to American
students of constitutional law. The Revolution and the formation of American
institutions should be seen as part of the history of political thought. It is
not the intention of these pages to declare that the philosophy of the American
Revolution was new; it is not the intention to assert that it came wholly from
Locke or from the polity and theology of Puritanism. There was little that was
new in the American doctrines, perhaps nothing. But we do find that Americans
were ready to institutionalize their principles and not merely to fight for
them. For a discussion of the antiquity of the doctrines, see James Sullivan,
"The Antecedents of the Declaration of Independence," Am. Hist. Asso.
Report for 1902, I, pp. 65-81. Sullivan finds all of the doctrines of
the Declaration, though many parts were much older, in the philosophy of
Nicolas of Cusa, of the early fifteenth century.
[4] Even after, long after, our Constitution was founded,
American lawyers not only spoke in the philosophy of Locke, but quoted him or
referred to him. See, as an example, T. M. Cooley, The General Principles of
Constitutional Law (4th ed.), p. 138 and note 1, referring to Locke to show
the unconstitutionality of delegation of power by a legislative body.
[5] Locke, op. cit., bk. II, secs. 123-124.
[6]Ibid., bk. II, sec. 135.
[7]Ibid., bk. II, sec. 136.
[8]Ibid., bk. II, sec. 137; see also secs. 22,
124.
[9] Locke's summary of his chapter, "Of the Extent of the
Legislative Power", presents some of the ideas just discussed: "These are the
bounds which the trust that is put in them by the society and the law of God
and Nature have set to the legislative power of every commonwealth, in all
forms of government. First: They are to govern by promulgated established laws,
not to be varied in particular cases, but to have one rule for rich and poor,
for the favourite at Court, and the countryman at plough. Secondly: These laws
also ought to be designed for no other end ultimately but the good of the
people. Thirdly. They must not raise taxes on the property of the people
without the consent of the people given by themselves or their deputies. And
this properly concerns only such governments where the legislative is always Ml
being, or at least where the people have not reserved any part of the
legislative to deputies, to be from time to time chosen by themselves.
Fourthly: Legislative neither must nor can transfer the power of making laws to
anybody else, or place it anywhere but where the people have." Ibid.,
bk, II, sec. 142.
[10] See, for example, Thomas Aquinas, Summa
Theologica, part 2, no. 3, q. 95, art. 2, p. 57 (1915 ed.): "Every
human law has just so much of the nature of law, as it is derived from the law
of nature. But if in any point it deflects from the law of nature it is no
longer a law; it is but a perversion of law."
[11] Locke, op. cit., bk. II, sec. 160.
[12]Ibid., bk. II, sec. 202.
[13]Ibid., bk. II, sec. 168. The reader thinking in
the terms of modern politics would now answer the question by saying, "The
people must judge." But it is to be noticed that Locke means their right to
fight, their right to "appeal to Heaven." To constitutionalize and
institutionalize this right to judge was to be part of the work of the American
Revolution.
[14]Ibid., bk. II, sec. 203.
[15] Rebels in behalf of the great ends of society were not
rebels; the tyrant was the lawbreaker, a rebel against law superior to himself.
"In whatsoever he has no authority, there he is no king, and may be resisted:
for wheresoever the authority ceases, the king ceases too...." Ibid.,
bk. II, sec. 239.
[16]Ibid., bk. II, sec. 225. Cf. the Declaration of
Independence.
[17]A Discourse Concerning Unlimited Submission
(Boston, 1750), p. 38 ff.
[18] This subject of convenant, compact, and binding law is
briefly treated in the author's The Foundations of American
Constitutionalism, a series of lectures delivered in New York University.
The purpose of those lectures was to show the origins of American
constitutional doctrines, especially as indicated by New England history.
[19] Loan Association v. Topeka, 20 Wallace 655, 663.
The word "reservations" deserves special attention. It unquestionably implies
the existence of rights before governments were established, and it is similar
to, if not identical with, the theory of a body of natural rights under natural
law anterior to the constitution of social order. We may well notice also the
principles often announced in federal court decisions two hundred years and
more after Locke, which declared acts void because they violated principles of
right and justice; the supposition is that there is a standard of
justice beyond which legislation must not go and which is protected by the due
process clause of the fourteenth amendment.
[20] Journal of the convention in American Archives
(Peter Force, ed.), fourth series, VI, col. 1524. See also, H. B. Grigsby,
The Virginia Convention of 1776, pp. 8, 17-18. It is interesting to
notice that the Pennsylvania assembly, when consenting to the compacts between
the colonies in 1776, spoke of "reserving to the people of this Colony the sole
and exclusive right of regulating the internal government and police of the
same." American Archives, fourth series, VI, col. 755.
[21] See Becker, op. cit.; Lincoln, op. cit.;
Schlesinger, op. cit., especially p. 591 ff.
[22] These were Willing and Humphreys of Pennsylvania and
Read of Delaware. John Dickinson and Robert Morris of Pennsylvania were absent
when the vote was taken. Dickinson appears to have been influenced by the
belief that, before actual declaration of independence, state governments
should be set up and that there should be agreement on the terms of
confederation. It was not unreasonable to contend that substantial governmental
union should precede separation or that the two be practically
contemporaneous.
[23] "The declaration of independence being engrossed and
compared at the table was signed...." Journals, V, p. 626. See Herbert
Friedenwald, The Declaration of Independence, ch. VI. Some of the
signers whose names were on the list were not members of Congress on July 4.
One member is known to have signed as late as 1781.
[24] Of course, Congress might have discussed at length the
problem of just how much power Parliament had had; but there would have been
disagreement, and the whole declaration, if one had ever been reached, would
have been ineffective. Thus Parliament was ignored as a body "foreign to our
constitutions, and unacknowledged by our laws...."
[25] By this I do not mean that there were no persons who
rejected the doctrines of compact and natural rights; but these beliefs were so
widely held that they may with some confidence be ascribed even to many who
were not ready to act upon them by rebellion.
[26] "As usurpation is the exercise of power which another
hath a right to, so tyranny is the exercise of power beyond right, which nobody
can have a right to...." Locke, op. cit., bk. II, sec. 199. "Wherever
law ends, tyranny begins, if the law be transgressed to another's harm...."
Ibid., bk. II, sec. 202. Doubtless the American patriots were willing in
their excitement to use terms of denunciation fitting a Borgia or a Caligula.
But without reference to that fact, the philosophy of the Declaration is
consistent. It is tyranny that justifies revolution, and surely Jefferson piled
up a rather large series of specific indictments.
[27] Notice that John Milton (quoted without reference by J.
W. Thornton in The Pulpit of the American Revolution, pp. 67-68 note)
pointed out that to resist authority acting contrary to what St. Paul makes the
duty of those in authority is not to "resist the power nor the magistracy" but
to "resist a robber, a tyrant, an enemy." Jared Eliot, in his Connecticut
election sermon, 1738, said, "Arbitrary Despotick Government, is, When this
Sovereign Power is directed by the Passions, Ignorance & Lust of them that
Rule. And a Legal Government is, When this Arbitrary & Sovereign Power puts
itself under Restraints, and lays itself under Limitations, in all Instances
where they see it Either possible or probable, that the Exercise of this
Sovereign Power may prove or have proved Prejudicial or Mischievous to the
Subject: Even this is an Act of Sovereign Power. This is what we call a Legal
Limited & well Constituted Government. Under such a Government only there
is true Liberty." Quoted in Baldwin, op. cit., p. 176.
[28] "The Power of the greatest Potentate on Earth is not
Inherent in him, but is a Derivative...." Ebenezer Pemberton, On the Power
and Limitations of Magistrates, Massachusetts election sermon, 1710. Quoted
in Ibid., p. 174.
[29] In a pamphlet ascribed to Elisha Williams and issued in
1744, we find this: "Reason teaches us that all Men are naturally equal in
Respect of Jurisdiction or Dominion one over another.... But it [natural
freedom] consists in a Freedom from any superior Power on Earth, and not being
under the Will or legislative Authority of Man, and having only the law of
Nature (or in other Words, of its Maker) for his Rule...." Quoted in Ibid.,
p. 176. The writer goes on to consider why men gave up the original state
of nature and he refers to Locke.
"... 'Tis not indeed pretended that any one man or number of men have
any natural right or superiority, or inherent claim of dominion or governmental
authority over any other man or body of men. All men are by nature free and
equal and independent in this matter. It is in compact, and in compact
alone, that all just government is founded." Jonas Clark, Massachusetts
election sermon, 1781, Quoted in Ibid., p. 180.
"But though men when they enter into society give up the equality,
liberty, and executive power they had in the state of Nature into the hands of
the society ... yet ... the power of the society ... can never be supposed to
extend farther than the common good...." Locke, op. cit., bk. II, sec.
131. See also secs. 4, 54.
