Natural Rights and The Declaration of Independence: (Part II): Diverging Theories Of Natural Rights Theory Before the Revolution.

In part I of this essay, I argued that the American colonists were initially ambivalent about Lockean natural rights theory for several reasons. First, they thought that natural rights theory was grounded in a problematic historical proposition that did not have unanimous agreement. There were, for example, doubts about the existence of a State of Nature and the founding of government in general in social compact. Some believed government’s origin was lost in antiquity and there was no evidence that government was founded in general on social compact. In fact, some believed that government was in actuality founded on power, property or divine appointment. And secondly, the classic Lockean theory seemed to diminish the role of God by portraying government as a human creation, an accident, or arbitrary choice rather than a “divine appointment.”

Some writers, such as Stephen Hopkins, explicitly avoided natural rights arguments for this reason and based colonial rights on the British constitution and colonial charters. Others such as James Otis attempted to offer an alternative theory of government’s origin that circumvented these problems.

The question now at hand in the second part of this essay is how and why the attitude towards natural rights shifted by the time of the Declaration of Independence. Does the Declaration reflect any of this earlier ambivalence or does it represent an unambiguous embrace of Lockean natural rights? If not, what happened to the earlier ambivalence about natural rights?

In Part II of this essay it will become apparent that natural rights does take on more prominence in colonial writing as the resistance to Great Britain unfolds. There are several reasons for this increased prominence. The earlier arguments about British rights and colonial charters had failed to convince all American or British subjects of the justice of colonial rights. Counter arguments had disputed the right to representation or the right to local legislative authority over taxes. The earlier conviction that these other rights arguments had less problematic starting points, beginning from what were shared assumptions about the British constitution and British rights, proved to be wrong. They simply did not have the desired effect of convincing Parliament that Americans should be able to tax themselves. Furthermore, it became clear that the American colonies could not justify a limitation on Parliament’s power from British rights and the constitution alone. Critics had responded that British Americans could not have their cake and eat it too. They could not argue they shared in British rights, and then reject Parliament’s authority which was derived and grounded in those very same rights and source, the British constitution. And critics had also argued that in fact the colonies did actually enjoy the rights guaranteed in charters and the Constitution, but enjoyed them virtually through the commons who represented them.

Natural rights, as a source of rights outside the constitution, could serve as a basis for arguing a limitation on Parliament’s power. Anchoring rights outside a specific social compact provided a point of absolute reference. If some rights were outside the constitution, then they did supersede Parliament’s authority. Part of the impulse to turn to natural rights was to do just this as the debate proceeded.

Another reason that natural rights began to appeal to the colonists was that it served to unify them across the colonies. The reliance on colonial charters, as we have seen, tended to fragment colonial arguments making each colony’ argument dependent on its own specific charter. But as the colonies move towards finding common ground with each other, the language of natural rights serves as a basis for rights that transcend specific colonial charters and unites the colonies in a common shared framework. For all of these reasons, natural rights language becomes more important as the colonies move from protest towards revolution.

Nonetheless, we shall see that despite this growing use of natural rights arguments, there remains some healthy ambivalence about natural rights up to the Declaration. The story that Becker and others tell in which the colonists increasingly shifted from British rights arguments to natural rights arguments as they moved towards independence is too simplistic. To begin with, not all writers appeal to natural rights to justify American claims and there are colonial debates over whether or not to appeal to natural rights in particular public statements. When colonists do appeal to natural rights, moreover, they sometimes opt for the language of “inalienable” or “inherent” rights rather than “natural rights”, as if to equivocate on whether they are invoking natural rights, British rights or some other kind of universal right. Indeed, there remains among some colonists the conviction that natural rights actually provides a more “feeble foundation” for rights than other arguments. In addition, even when natural rights are invoked, they are often used in conjunction with and complementary to several other arguments for rights. Sometimes natural rights acts as a supporting argument. At other times it is the driving force of the argument.

It would be a mistake, moreover, to assume that there was a single monolithic theory of natural rights that was invoked among the colonists. There is sometimes the tendency to construe any statement that looks like natural rights theory as an embrace of Lockean theory. But the use of natural rights was much more fluid and complex. There are in fact at least two and possibly more distinctive strands of natural rights arguments. One is a more classically Lockean type argument, appealing to the social compact and the origin of government in consent. The other appeals to a natural right to quit society and bases much of its argument on the right of “expatriation”. Each of these different strands moreover can be combined with arguments from British rights and Charters and with the other strand of natural rights argument. In short, there is a complex multi-faceted set of arguments in which various forms of natural rights arguments form one strand.

Carl Becker inn The Declaration of Independence is thus only partially correct when he explains the shift to natural rights arguments in colonial literature after the Townshend acts:

To meet this emergency, a theory which denied the jurisdiction of the British government in this or that particular matter, such as the taxing power, was inadequate; what was needed was a theory which would define the respective jurisdictions of the British and colonial governments in terms of some general principle.…That assumption was that the Americans were one “people,’ the English another, and each a ‘free’ people. No doubt an Englishman might have said this was begging the question; the precise question at issue, he might have maintained is whether the American are a ‘free’ people. We maintain that they are subject to the British Parliament. The Parliament has always exercised jurisdiction over them in fact; and to prove this we point you to any number of statutes duly passed and recorded and submitted to…On this ground it was indeed difficult to meet the British contention. In order to maintain the rights of a free people, the colonists were accordingly forced to change the question; and from this time on we find them less disposed to ask, What are the rights which we possess as British subjects? and more disposed to ask What are the rights which we possess as members of the human race?[1]

Looking back from the Declaration of Independence, Becker presents the turn to natural rights as an almost inevitable necessary shift in colonial discourse and as part of a shift towards independence. It is true that the appeal to natural rights helps ground colonial claims in rights that transcend the authority of and limit the British parliament. But Becker oversimplifies the shift and complexity, because he fails to see the ongoing ambivalence toward natural rights and the multivalent meaning of natural rights in the colonial debates. From the end game of independence, it looks like an inevitable development. But the colonists disagreed about both the theory of the British empire and about the use of natural rights in defending their rights or articulating the theory of the empire. Many of their debates continuing up to the Declaration of Independence reflect substantial disagreement on theoretical issues about the nature of how best to ground colonial rights, the nature of the human being, and the overall goals and purposes of social life. Had the revolution not occurred and succeeded, the picture of the colonists’ debates about rights likely would have been and therefore should be read very differently. The debate was not simply how explicit to be in declaring independence of parliament or whether reconciliation was possible. The debate was also over the best way to view the empire, to justify and understand American rights, and to understand the purposes of society in general.

Noting that different colonial writers had different views of rights, Morgan, for example, notes that not all thought natural rights the best way to make their case. Writing about why the Maryland lawyer and politician, Daniel Dulany, avoided use of natural rights and argued only from British rights, Morgan writes that:

Other spokesmen for the colonial cause had already begun to argue in terms of the natural rights of man, but Dulany knew that however such arguments might appeal to Americans, they would carry small weight in the British Parliament. The question, as he saw it, did not hinge so much on natural rights as it did on constitutional rights. As long as the colonists had the constitution on their side—and he was sure that they had—it would be best for them to ground their arguments on it.[2]

We shall see that some colonists continue to express doubts about the strength of natural rights arguments into the mid 1770’s and even a year before the Declaration of Independence. There were multiple intersecting impulses that both drove the colonists towards natural rights language but at the same time made them ambivalent about them. This is why the story of natural rights language in the period before the Revolution moves in fits and starts and depends on context and inclinations of particular writers. Natural rights language solved certain problems but created others. It united the colonists in some ways, but also surfaced differences in their understandings of rlghts and society.

As the debate moved from protest towards independence and then on to revolution the colonial ambivalence about natural rights may have lessened, although it does not disappear entirely. Natural rights seem more and more like the only grounds on which to base colonial arguments. As arguments shifted from the justification of equal rights of British and Americans subjects, to the argument that the colonies were independent states and not subject to Parliamentary authority, to the final argument that the colonies should declare independence, natural rights will take a more prominent role.

But the very power and usefulness of natural rights arguments was also its danger. For natural rights arguments could be interpreted as veiled threats of independence. Though the colonists’ intention was not to use natural rights in this way, at least initially, the danger was that appeals to natural rights would be so construed. And the colonists had already been criticized for wanting independence, even when they had been making arguments that did not rely on natural rights at all. Natural rights theory was a two-edged sword. Such arguments bolstered the colonies claims about their rights not to be taxed without representation but they challenged the notion that Parliament had ultimate authority. The debate over whether to ground American arguments in natural rights therefore was also tied in with how explicit Americans felt they wanted to be in denying Parliament’s authority over the colonies. It is to this part of the story that I turn in the second part of this essay.

Natural Rights and Stamp Act Resolutions

The Stamp Act was passed into legislation by parliament in March 1765, one year after the original announcement, ignoring all the colonies petitions and protests in the intervening year. In response, the colonies came out with various Stamp Act resolves. Symptoms of the colonies’ continued ambivalence towards natural rights is evident in the various Stamp Act Resolutions adopted by many of the colonies and the Stamp Act Congress, in which colonies came together in New York to provide a united response.

In May 1765, the first set of resolutions, proposed by Patrick Henry, were adopted by Virginia House of Burgess in a controversial meeting after part of the assembly had already recessed. Only four of Henry’s original resolutions were adopted and Henry was apparently accused of sedition for some of his statements, although it is not entirely clear what the grounds of this charge were and may possibly have been an innuendo suggesting revolution. [3]

The Virginia Resolves make no mention at all of natural rights and base the colonial rights, in order of the resolutions, on the fact 1) the early Virginia settlers brought their rights with them, 2) that their rights were affirmed in two Royal Charters of King James 3) “That the Taxation of the People by themselves, or by Persons chosen by themselves to represent them” are the “distinguishing Characteristick of British Freedom, without which the ancient Constitution cannot exist” and, 4) “That his Majesty’s liege People of this his most ancient and loyal Colony have without Interruption enjoyed the inestimable Right of being governed by such Laws…and that the same hath never been forfeited or yielded up...” [4]

Even after the Boston riots in August 1765, some of the colonial resolves still make no mention of natural rights. For example, no mention of natural rights is made in the Rhode Island Resolves (September 1765) nor in the Maryland Resolves (Sept 28 1765). [5]

Given that Americans were ambivalent about the use of natural rights, it is not surprising that no mention of natural rights is made in the Declaration of Rights Of the Stamp Act Congress, published in October 1765. The idea for the Stamp Act congress seems to have been suggested by James Otis who, in early June, asked the Massachusetts legislature to send a circular to invite all the colonies to a congress in New York.[6] Representatives from nine colonies attended though only six were empowered to sign the resolves. The resolves rest primarily on British rights, with a hint of more universal rights:

1st. That His Majesty's subjects in these colonies owe the same allegiance to the crown of Great Britain that is owing from his subjects born within the realm, and all due subordination to that
august body, the Parliament of Great Britain.

2d. That His Majesty's liege subjects in these colonies are entitled to all the inherent rights and privileges of his natural born subjects within the kingdom of Great Britain.

3d. That it is inseparably essential to the freedom of a people, and the undoubted rights of Englishmen, that no taxes should be imposed on them, but with their own consent, given personally, or by their representatives.

4th. That the people of these colonies are not, and from their local circumstances cannot be, represented in the House of Commons in Great Britain.

5th. That the only representatives of the people of these colonies are persons chosen therein, by themselves; and that no taxes ever have been or can be constitutionally imposed on them but by their respective legislatures…[7]

It took the Stamp Act Congress twelve days to come to the wording of its resolution. There was debate over how much of Parliament’s authority to acknowledge and a general consensus that Parliament had a right to regulate trade, though some of the participants did not want to make such an explicit acknowledgement.

Morgan notes that there are two drafts of the resolves that tried out different language regarding the colonists’ subordination to Parliament and the basis of rights.[8] The first states that “all Acts of Parliament not inconsistent with the Rights and Liberties of the Colonists are obligatory upon them.” Right and Liberties here are completely equivocal of course as to which types of rights and liberties are being discussed. A second draft tries a more universal approach: “all Acts of Parliament not inconsistent with the Principles of Freedom are obligatory upon the Colonists.” This wording alludes to general principles of Freedom that apparently are not dependent on any specific British constitution or colonial charters. This phrasing however was also abandoned for the final wording of the first resolution that his Majesty’s subjects owe “all due Subordination to that August Body the Parliament of Great-Britain.[9] “All due subordination of course leaves completely open the question of what type of rights the colonists stand on and whether they limit at all Parliament’s authority.”

But the appeal to general rights did make it into the third resolve. Here the statement that “it is inseparably essential to the freedom of a people” is an allusion to rights outside of strictly British rights. It is the freedom of “a people” not “the British people.” One could infer that natural rights were being addressed here. But the language clearly leaves open the question as to the source and character of those rights. Are they from nature, from divine appointment or human nature or some other source? Are they discerned by Reason or written on the heart? By not specifying “nature” as the source, the resolves equivocate on what theory of rights lies behind the claims about freedom. In addition, the emphasis in the first few resolves is on British rights, not these general essential freedoms. Since the Stamp Act Congress had to speak for a broader audience, namely, a consensus across colonies, it is not surprising that it opted for “lowest common denominator” and thus based the colonial claims primarily on British rights, not natural rights. During the congress there was discussion of adding in more general rights language but this was rejected. In a letter after the Congress, Christopher Gadsden of South Carolina reflected on the discussion.

I have ever been of opinion, that we should all endeavor to stand upon the broad and common ground of those natural and inherent rights that we all feel and know, as men and as descendants of Englishmen, we have a right to, and have always thought this bottom amply sufficient for our future importance…There ought to be no New England men, no New Yorker, &c., known on the Continent, but all of us Americans; a confirmation of our essential and common rights as Englishmen may be pleaded from the Charters safely enough, but any further dependence on them may be fatal.”[10]

Gadsden puts his finger on one key reason why natural rights would seem stronger a source of argument than colonial charters. Natural rights is a common right that is shared across the colonies and enables each colony to be united in their joint claim. It enables the colonies to argue, not as members of individual colonies, but as Americans in general. The shift to natural rights made sense to some, at least, as a way to shift discussion from the specific unique claims of each colony to more general claims as Americans. Thus unification of identity across the colonies in a common cause was one reason why natural rights arguments made sense to some.

If the Stamp Act Congress remained somewhat equivocal in its use of natural rights, some individual colonies were willing to be bolder, signaling a shift in attitude towards natural rights arguments.[11] On Sept 21, 1765, The Pennsylvania Assembly added an appeal to natural rights to its list of resolves alongside of an appeal to an inherent birthright:

Resolved, N. C. D. 3. 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, and that the Constitution of Government in this Province is founded on the natural Rights of Mankind, and the noble Principles of English Liberty, and therefore is, or ought to be, perfectly free.

Resolved, N. C. D. 4. 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.[12]

The Massachusetts Resolves (Oct 29, 1765) takes the thinking even further. Instead of just laying universal rights and British rights claims side by side, as does the Pennsylvania Resolves, the Massachusetts Resolves implicitly argues that the latter are derived from the former:

Resolved, That there are certain 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--therefore

II. Resolved, --That the inhabitants of this province are unalienable entitled to those essential rights in common with all men: and that no law of society can, consistent with the law of God and nature, divest them of those rights.

III. Resolved, --That no man can justly take the property of another without his consent; and that upon this original principle the right of representation in the same body, which exercises the power of making laws for levying taxes, which is one of the main pillars of the British constitution, is evidently founded….[13]

The first three resolves anchor essential rights of the British Constitution in more general universal rights. Nothing can divest anyone of those rights since they are invested in the law of God and nature. After arguing that the British Constitution is founded in these general rights, the resolutions go on to make arguments from other sources of rights as well, including, charters and equity.

It is interesting to note how these Massachusetts Resolves do not use the expression “natural rights” preferring the expressions "“common Rights of Mankind” and “essential rights in common with all men” and “original principle,” “which are founded in the “Law of God and Nature”.

It is possible the expressions “common rights” and “inherent and unalienable rights” are simply an alternative equivalent way of saying “natural rights”. That is how most people interpret comparable language in the Declaration of Independence, for example. And if so, these Massachusetts resolutions are a straightforward appeal to natural rights theory. But it is interesting the care which these resolves take to use some expression rather than natural rights. Is this significant?

It depends on how one construes the statement “founded in the Law of God and Nature” which appears in two of the resolves. If one takes this expression as simply a way of referring to natural rights, then the Massachusetts resolutions are here simply arguing that the British constitution is founded in natural rights. But if the expression “founded in the Law of God and Nature” carries some other significance above and beyond or in contrast to “natural rights”, then “common rights” and “natural rights” are not identical concepts.

It is possible, in fact, that the expression “founded in the Law of God and Nature” really equivocates to some extent on the origin of rights and attempts to be much more inclusive and open an expression, leaving ambiguous the precise origin and nature of these common rights. Natural rights of the classically Lockean sort carried with them a number of assumptions about God, the nature of human beings, the reasons society arose and was needed, and the origin and purpose of government. Lockean natural rights assumed there was a Law of Nature, discernible by Reason and obligatory in a State of Nature, that gave humans the rights of life, liberty and property. Because life in society was better than life alone, people were inclined to join society and relinquish some of their natural freedoms in consenting to join a political entity.

But at least some aspects of natural rights theory were in dispute or troubling, as we have already seen in Part I. We have already seen, for example, how James Otis and Stephen Hopkins have doubts about the exact origin of government and original rights. As we shall see below, the same concern is reiterated by Samuel Adams. In addition, we have seen already in writers like Otis and Williams a desire to more strongly emphasize the role of God in creating society and government. Though Locke gave God a prominent place in his political theory, some colonial writers did not think God’s role was emphasized enough. Otis argued that there was no general social compact or a State of Nature and used both the language of common rights and natural rights of humankind to describe his position. Abraham Williams had explained that “when Men enter into civil Societies, and agree upon rational Forms of Government, they act right, conformable to the Will of God, by the Concurrence of whose providence, Rulers are appointed.”[14]

Beyond these two writers, moreover, there was in fact a rich American literature of “political sermons” that brought Christian theology, Scriptural exegesis, and theory of government much more evidently together. This literature, already developed before the Stamp Act controversy and continuing after, uses many key concepts that are very much natural rights like in substance and language. But in these political sermons there is a recurring emphasis on how key natural rights concepts are compatible with classic notions of Christianity and of God’s will. From within the traditions of Christianity, concepts of sin, redemption, eschatology, God’s will, free will, evil all are central concepts that are brought together with the classic notion of natural rights. The effort to bring together and intertwine these theological conceptions with classic Lockean ideas of consent, the law of nature and liberty at a minimum transformed and in some cases arguably fundamentally changed the natural rights tradition. What emerged was something that was Lockean and not Lockean at the same time. Natural rights now looked quite different then they had in Locke. Now rights are understood within the larger religious frame of humans as religious beings and as Christians fulfilling God’s purpose and being righteous by living in societies under consent. Consent is now a religious act that fulfils God’s will. We shall see some further examples of this theological discourse on rights below.

The appearance of and priority given to “God” in the expression “God and nature” in these Massachusetts resolves and the avoidance of the term “natural rights” therefore may signal a kind of distancing from traditional Lockean natural rights theory or at least a move to be more inclusive of more religious-oriented conceptions of rights, liberty and political society. The expression “law of God and nature” could be a strictly Lockean view of rights. But more theologically inclined and religiously sensitive individuals would also find their own understanding of rights embraced by this expression. There were in fact a range of different views on how the theological conceptions of Christianity should be reconciled with concepts from the natural rights tradition. The expression “law of God and Nature” leaves open the precise way in which these original rights are understood.

It is important to note that the expression “law of God and nature” which is so common in the American colonists writing during this period, appears in Locke’s Second Treatise, but much less frequently than the expression “law of nature.” [15] Although Locke himself clearly presupposed a God who created Nature and embedded law in Nature which was self-evident to reason, Locke prefers the term “law of nature” throughout his Second Treatise. Indeed, Locke’s political discourse in the Second Treatise was light on theological justifications and Scriptural interpretations at least compared with the American political sermons. Of course, Locke also wrote a more theologically oriented exposition of liberty in his First Treatise of Government as an exercise of rejecting Filmer’s theory of divine right. But in his Second Treatise, which is his classic exposition of natural rights theory, religious and theological language are noticeably secondary and illustrate just how far an exposition of the theory of Reason and Right can move from classic Christian concepts and language. The American political sermons were pulling that discourse back in, if not remaking it in their Christianizing of political theory.

The expressions “common rights” and “unalienable” rights in these Massachusetts resolution, therefore, may not simply be synonyms for “natural rights” as is often assumed. They might be circumlocutions that distance themselves to some degree from some aspects of classical Lockean theory, even as they embrace a general theory of human rights. This language then symbolically strips natural rights theory of its problematic Lockean historical assumptions and tries to appeal to a broader audience that sees God and Christian concepts as much more central to the origin of society, rights and government. It is as if the resolves want to argue for a general human rights, without making a specific commitment to which theory of rights they rely on. The language enables both the more Lockean oriented theory and the religiously oriented theory of rights to be embraced in this general allusion to rights.

We shall set this question of God and natural rights aside for now and return to it after we look at the circumspection towards and inconsistent use of natural rights language in another Massachusetts writer during the same period, namely, Samuel Adams. Adams of course is well-known as a early leader in Massachusetts resistance to Great Britain, an attendee to the First Continental Congress and later signer of the Declaration of Independence. In the early correspondence of Samuel Adams during 1764 and 1765, natural rights language is used sporadically throughout his correspondence but gradually takes on a more prominent role.

The earliest of these letters contains “Instructions Of The Town Of Boston To Its Representatives In The General Court” (May 1764) written by a committee that included Samuel Adams and addressed interestingly enough to James Otis and Oxenbridge Thatcher, among others. In this first correspondence we find no appeal to natural rights at all. Instead, the committee advises their representatives “to remonstrate for us all those Rights and Privileges which justly belong to us either by Charter or Birth”. No mention here is made of natural rights. [16]

But by September 1765, more than a year later, and after the August riots in Boston and Newport, the “Instructions Of The Town Of Boston To Its Representatives in the General Court” extend these rights when speaking about the Stamp Act:

But we are more particularly alarmd and astonishd at the Act, called the Stamp Act, by which a very grievous and we apprehend unconstitutional Tax is to be laid upon the Colony.

By the Royal Charter granted to our Ancestors, the Power of making Laws for our internal Government, and of levying Taxes, is vested in the General Assembly: And by the same Charter the Inhabitants of this Province are entitled to all the Rights and Privileges of natural free born Subjects of Great Britain: The most essential Rights of British Subjects are those of being represented in the same Body which exercises the Power of levying Taxes upon them, and of having their Property tryed by Jurys: These are the very Pillars of the British Constitution founded in the common Rights of Mankind.” [emphasis added][17]

This one paragraph trots out several notions of rights and like other documents which are not more theoretical does not necessarily reflect on the relationship of these various rights. The colony has the same rights as natural free born subjects of Great Britain and these are granted in Charters. They are also the pillars of the Constitution and founded in “the common Rights of Mankind.” The letter goes on to explain that the new courts of admiralty that allow Stamp Act issues to be tried without a jury “annihilates the most valueable Privileges of our Charter, deprives us of the most essential Rights of Briton,” and , in very Lockean language, “greatly weakens the best Security of our Lives, Libertys and Estates…” [18] We see in this one paragraph how the various theories of rights could be tied together and viewed as complementary, even though the exact relationship or prioritization of these theories is not developed. But still there is no explicit mention of natural rights.

The Instructions go on to urge the Boston representatives “to use your best Endeavors in the General Assembly, to have the inherent, unalienable Rights of the People of this Province, asserted and vindicated and left upon the publick Records…” [19] The language of “inherent, unalienable Rights of the People of this Province” can be referring to any or all of these theories of rights, because rights given by charter or by the constitution or by nature or even God can all be construed as inherent and unalienable and belonging to the people of the province. The language of the instruction, then, still veers away from the explicit language of natural rights, in the same way that the Massachusetts Resolves did.

Then on Oct 23, 1765 as an “Answer Of The House Of Representatives Of Massachusetts To The Govenor’s Speech” the appeal to natural rights begins to become somewhat more explicit, although it is used alongside of several others arguments for rights.[20] At one moment, natural rights is used to justify the colonial protections. In the next breath, the charters are used as the basis of rights and in still another breath the colonists are pictured founding their own independent governments in the colonies. The letter slides back and forth between these various not completely consistent theories, with natural rights being the least emphasized of all.

First, the Answers emphasize that

…your Excellency tells us that the right of the Parliament to make laws for the American colonies remains indisputable in Westminster. Without contending this point, we beg leave just to observe that the charter of the province invests the General Assembly with the power of making law for its internal government and taxation; and that this charter has never been forfeited. The Parliament has a right to make all laws within the limits of their own constitution; they claim no more. Your Excellency will acknowledge that there are certain original inherent rights belonging to the people, which the Parliament itself cannot divest them of, consistent with their own constitution: among these is the right of representation in the same body which exercises the power of taxation.”[21] [emphasis added].

Here is an appeal first to the charters and then to original inherent rights. Initially, we cannot yet tell whether these “original inherent” rights are natural rights, or have some other kind of source. They could be the original inherent rights of natural British subjects. But then in more explicitly natural rights language, the letter emphasizes the colony’s affection for his Majesty.

They have a warm sense of honor, freedom and independence of the subjects of a patriot King: they have a just value for those inestimable rights which are derived to all men from nature, and are happily interwoven in the British constitution. They esteem it sacrilege for them to ever give them up; and rather than lose them, they would willingly part with every thing else.”[22] [emphasis added]

In this case there is an explicit appeal to rights from nature, but immediately it is emphasized that these rights are interwoven in the British constitution. Instead of appealing to natural rights alone, the letter is arguing that the colonies are protected by natural rights and because they are interwoven within the framework of British rights. Significantly, these rights are described as so important that the colonists would regard it a “sacrilege” to give them up. And “rather than lose them they would willingly part with every thing else.” There is no mistaking here that the letters are both explaining the recent riots and threatening resistance, if not something more, should these rights continue to be jeopardized.

The letter goes on to reiterate the concerns that the Massachusetts colonists have with the Stamp Act, this time totally ignoring natural rights.

They complain that some of the most essential rights of Magna Charta, to which as British subjects they have an undoubted claim, are injured by it: that it wholly cancels the very conditions upon which our ancestors settled this country, and enlarged his Majesty’s dominions, with much toil and blood, and at their sole expense: that it is totally subversive of the happiest frame of subordinate, civil government, expressed in our charter, which amply secures to the Crown our allegiance, to the nation our connection, and to ourselves the indefeasible rights of Britons: that it tends to destroy that mutual confidence and affection, as well as that equality which ought to ever to subsist among all his Majesty’s subjects in his wide and extended empire:[23]

Here appeal is made to the Magna Charta as the source of rights, which the colonists have claimed as British subjects, with no attempt to explain the relationship between natural rights and the rights embodied in the Magna Charta.

This letter with its multiple theories of rights was written in the weeks before the Massachusetts Resolutions examined above.

In a letter to “Reverend G-W-”, on November 11, 1765, Samuel Adams and Thomas Cushing together give still a further explication of the charters and essentially make the charters the source of the colonies’ rights. But now the meaning of the charters has changed.

We need not inform you that we are the Descendents of Ancestors remarkeable for their Zeal for true Religion and Liberty: When they found it no longer possible for them the [sic] bear any part in the Support of this glorious Cause in their Native Country England, they transplanted themselves at their own very great Expence, into the Wilds of America, till that Time inhabited only by Savage Beasts and Men: Here they resolvd to set up the Worship of God, according to their best Judgment, upon the Plan of the new Testament; to maintain it among themselves, and transmit it to their Posterity; and to spread the knowledge of Jesus Christ among the ignorant and barbarous Natives. As they were prosperd, in their Settlement by Him, whose is the Earth and the Fullness thereof, beyond all human Expectation, they soon became a considerable Object of National Attention, and a Charter was granted them by King Charles the first… Thus we see that Whatever Governmnt in general may be founded in, Ours was manifestly founded in Compact. Of this Charter we were however deprivd, in an evil Reign, under Color of Law, but we obtaind Another, in Lieu of it, after the Revolution, tho compard with the former, it is but as the Shadow of the Substance, and we enjoy it at this day. [24] [emphasis added]

Significantly, we see here that Adams and Cushing express the same worry about the doubtful origin of government in general that we saw earlier in Otis and Hopkins: “Thus we see that Whatever Governmnt in general may be founded in, Ours was manifestly founded in Compact.” If you have doubts about how government in general originated, that concern does not matter, since it is clear that “ours” was founded in an actual compact. There is a continued sense here that the origin of government in general is still contentious and that a more concrete source of rights is needed. Charters therefore feel more “concrete” a source of rights as actual compact rather than a general theory of rights. We shall see this same exact sentiment continue to appear in the debates of the First Continental Congress, in which natural rights are still thought by some to be “feeble supports.”

The charters are construed here, not as grants of privileges from Great Britain, but as their own original compacts, analogous to the British Constitution itself. The colonists could have been independent states had they wanted. But they chose to swear allegiance to the Crown.

For, As their Ancestors emigrated at their own Expence, and not the Nations; As it was their own and not a National Act; so they came to and settled a Country which the Nation had no Sort of Right in: Hence there might have been a Claim of Independency, which no People on Earth, could have any just Authority of Pretence to have molested. But their strong and natural Attachment to their Native Country inclind them to have their political Relation with her continued; They were recognizd by her, and they and their Posterity, are expressly declard in their Charter to be entitled, to all Libertys and Immunitys of free and natural Subjects of Great Britain, to all Intents Purposes and Constructions whatever. So that this Charter is to be looked upon, to be as sacred to them as Magna Charta is to the People of Britain; as it contains a Declaration of all their Rights founded in natural Justice.

By this Charter, we have an exclusive Right to make Laws for our own internal Government and Taxation:…”[25]

Here is a theory of the colonies as independent states founded on their own original social compact or charters. We have seen a similar view put forward by Hopkins before. But now this view is grounded explicitly in the charters. The colonists came of their own accord and own expense to the new country. The colonization was not a national act of Great Britain. They therefore had a “claim of Independency” from the start. Out of their own desire and choice, the colonies chose to enter into relationship with Great Britain and were “recognized by her.” The charters then were like an actual social contract, entered into by choice by both political entities, and not privileges granted to the colonies nor a birthright inherited because they were always subjects. Out of this new contract, their own Magna Charta, the colonies have all the rights of British subjects by contract.

Whether the understanding of this new American social compact is based here on natural rights theory is not entirely clear. One could construe the statements here as resting on Lockean notions of “social compact.” But we have to be careful. The notion of consenting to social contracts does not always rest on Lockean natural rights philosophy. We have seen, as an example, that appeals to rights in the British constitution rested on notions of “common law,” “ancient tradition”, without invoking Lockean notions of rights of nature. What theory of rights underlies these colonial compacts, these letters do not say. What made these contracts legitimate? On whom are they binding? What is their relationship to natural rights? These are questions that are not explicitly addressed here. We shall see one pamphlet writer take on these questions within a few months after this letter was written. But in this letter, there is only a hint here at the end of the passage of what points towards a more universal notion of rights: This compact is “as sacred to them as Magna Charta is to the People of Britain; as it contains a Declaration of all their Rights founded in natural Justice.” The use of “founded in natural justice” points to some more general theory of rights, but displays at least a remaining hesitation to name natural rights as the foundation of colonial rights theory.

While Adams anchors Massachusetts’ rights in the independent decision to continue relationship with Great Britain, it is clear that he does not believe that same view of rights applies to other colonies. In a letter to John Smith in December of 1765, for example, Adams indicates that the other colonies “undoubtedly brought with them all the Rights and Laws of the Mother State.”[26] So Adams essentially argues that different colonies have different sources of rights. Massachusetts was independent at the start, but other colonies brought their rights with them.

As discussed earlier, basing colonial rights on different charters presented a problem for colonial unity. We see here one outcome of that problem: there are different sources of colonial rights. This fragmentation is precisely the problem that had been on the mind of Christopher Gadsden when he had desired to found colonial rights on broader rights in the Stamp Act Congress discussed earlier. Sensing the need for a broader basis for rights, Adams argues that the British Constitution is founded on “unalienable Rights of Nature”:

The British Constitution is founded in the Principles of Nature and Reason-it admits of no more Power over the Subject than is necessary for the Support of Government which was originally designd for the Preservation of the unalienable Rights of Nature—It engages to all Men the full Enjoyment of these Rights, who take Refuge in her Bosome—…[27]

Regarding, the colonist’s right of representation in the House of Commons, he writes:

This is his indisputable Privilege-It is founded in the eternal Law of Equity—It is an original Right of Nature—No man in the State of Nature can justly take Another’s Property without his Consent—The Rights of Nature are happily interwoven in the British Constitution –It is its Glory that it is copyd from Nature—It is an essential Part of it, that the supreme Power cannot take from any man any Part of his Property without his Consent…[28]

And then in another letter (Dec. 20 1765) signed by Samuel Adams, James Otis and others and addressed to Dennys De Berdt, who was then agent in London for the colony of Massachusetts, we see both the most explicit statement of natural rights intertwined with the other theories.

They hold themselves intitled to all the inherent, unalienable Rights of Nature, as Men—and to all the essential Rights of Britons, as subjects. The common Law of England, and the grand leading Principles of the British Constitution have their Foundation in the Laws of Nature and universal Reason. Hence one would think that British Rights, are in a great Measure, unalienably, the Rights of the Colonists, and of all Men else. The American Subjects are by Charters from the Crown, and other royal Institutions declared intitled to all the Rights and Privileges of natural born Subjects within the Realm— and with good Reason; for as emigrating Subjects, they brought the Rights and Laws of the Mother State with them. Had they been conquered, we presume that by the British Constitution, after taking the Oaths of Allegiance, they would be acknowledged as free Subjects… The primary, absolute, natural Rights of Englishmen as frequently declared in Acts of Parliament from Magna Charta to this Day, are Personal Security, Personal Liberty and Private Property, and to these Rights the Colonists are intitled by Charters, by Common Law and by Acts of Parliament.[29]

Natural rights language is here more explicit and moves to the fore in the way not evident in the earlier letters. It is no longer just an additional argument supporting colonial rights or British rights but a central driving part of the argument. The argument has in fact been reversed in a way. Instead of inherent common rights being protected by being interwoven in the British Constitution, now all men share British rights because those are grounded in the “Laws of Nature and Universal Reason”. The shift is subtle but noticeable. Instead of the British constitution protecting subjects’ natural rights, British rights are “are in a great Measure unalienable, the Rights of the colonists, and of all Men else.” British rights are in other words “universal rights.” Natural rights starts to take more prominence and importance in the argument, providing more of a grounding, and arguments from British rights and the charters start to move behind it and become secondary.

And yet even here a need is still felt to ground the colonists’ claims, not on natural rights alone, but on the fact that as “emigrating Subjects, they brought the Rights and Laws of the Mother State with Them.” In the earlier letter signed by Adams quoted above (Nov 11) a quite different claim was made about the status of emigration. There Adam’s argued that with the emigrants to Massachusetts “there might have been a Claim of Independency”. But here no claim of independence is made for emigration. Now the emigrants brought British rights, which are natural rights, with them.

The statement goes on to consider whether the colonies should be treated as conquered territories. Adams and other colonial writers would repeatedly emphasize that the colonists emigrated with their own blood and effort, and therefore, that the colonization is not a national act of Great Britain. But in case someone argued that the colonies were considered conquered territories, the letter argues that even in such a case the colonists would become subjects through the Oath of Allegiance and thus would be entitled to all the rights of British subjects.

We shall see the whole question of whether to argue from natural rights, colonial charters, the nature of emigration or naturalization and the question of whether the colonies were conquered territories remain points of contention between the colonists up into the First Congress in 1774. Here in the letter by Adams, Otis, Cushing, and Gray we see multiple different claims about rights being made with no attempt to fully think through their relationship or consistency.

It is interesting that James Otis signed this letter with Adams, despite his own alternative theory of government’s origin and his doubts about social compact theory, written a year before. As we saw in Part I of this essay, Otis himself used natural rights language, even though he dismissed the idea of a State of Nature and the origin of government in social compact. Perhaps even here the language of natural rights was general enough that Otis could still feel that his own theory of government’s origin was represented by it.

In any case, these Massachusetts letters and instructions show a complicated, inconsistent use of natural rights arguments combined with several other arguments grounding colonial rights. We have seen that over a period of months in late 1765 after the Stamp Act Congress, natural rights language moves more to the fore of the argument. In part, this language helps justify a united story across the colonies, avoiding the problem that each colony had its own separate source of rights. And while there are hints in these letters that the use of natural rights could help support notions of armed resistance, that is not primarily how the arguments are used. On the contrary, the argument that seems to move in the direction of independence rests on a historical argument that the first settlers came to Massachusetts at their own expense and risk and thus were to all intents and purposes a free people who chose to join the British Empire. This argument which grounds the independence of Massachusetts in a historical argument does not yet explicitly appeal to natural rights theory nor is generalized to all the colonies. But just that transformation will occur before the Stamp Act controversy closes.

By December 1765, Adams and his Massachusetts colleagues are using natural rights more explicitly and more prominently in their arguments.

At the same time, another set of colonial resolves makes one of the most radical uses of natural rights thus far examined. The Connecticut Resolutions of December 10, 1765 appeal to natural rights to justify the dissolution of society and armed revolt.[30] In linking natural rights to revolt, these resolves signal a shift in the debate and in the use of natural rights, now referring not to rights to be equal with British subjects, but to leave and abandon British society. In making this link, these resolves go where Otis was not yet willing to go and anticipate more detailed arguments of the same type in a pamphlet by Richard Bland, which would follow in the spring.

Resolved, 1st. That every form of government rightfully founded, originates from the consent of the people.

2d. That the boundaries set by the people in all constitutions are the only limits within which any officer can lawfully exercise authority.

3d. That whenever those bounds are exceeded, the people have a right to reassume the exercise of that authority which by nature they had before they delegated it to individuals.

4th. That every tax imposed upon English subjects without consent is against the natural rights and the bounds prescribed by the English constitution.

5th. That the Stamp Act in special, is a tax imposed on the colonies without their consent

6th. That it is the duty of every person in the colonies to oppose by every lawful means the execution of those acts imposed on them, and if they can in no other way be relieved, to reassume their natural rights and the authority the laws of nature and of God have vested them with. [31]

Here the Connecticut resolves make one of the most explicit and radical uses of natural rights theories examined so far. We see an explicitly Lockean view that governments “rightfully founded” derive from the consent of the people. That consent represented in the constitution sets the limits on authority and “the people” can take back that authority “which by nature they had delegated” to authorities. This is not merely a right. It is a duty to oppose laws that infringe the boundaries set by the people in their constitution. If there is no legal way to ensure that those boundaries are preserved, they must “reassume their natural rights and the authority the laws of nature and of God have vested them with.”

Not coincidentally, this more radical use of natural rights appear about the same time that the Sons of Liberty have begun to formally constitute themselves as a distinctive group and began to announce their willingness to resist by force.[32] Yet interestingly enough, even the charters of the Sons of Liberty, who organize specifically to offer resistance, do not consistently appeal to natural rights.[33] Here again we see that that the impulse towards resistance did not inevitably lead to a use of natural rights arguments.

The statements made by colonies to this point (December 1765) anticipate most of the uses made of natural rights until the Declaration of Independence with one notable exception discussed below. But even as they begin turning more fully to natural rights, we see hints that the colonists still had some ambivalence about the possible negative religious implications of the natural rights doctrine and the problematic origin in social compact. They prefer at times the language of “inherent rights” and “common human rights”, as well emphasizing that natural rights are interwoven in the British constitution. They also develop arguments that start to articulate a notion of independence that is not self-evidently founded on natural rights arguments, namely, the notion that the colonies were set up originally as independent entities and only chose to join the Great Britain through a compact.

Morgan is partially correct yet somewhat misleading when he writes that

Thus by the fall of 1765 the colonists had clearly laid down the line where they believed the Parliament should stop, and they had drawn that line not merely as Englishmen but as men. The line was far short of independence, and there was no suggestion in any of the resolutions of the congress or of the assemblies that the colonists wished to cease being Englishman. Nevertheless, if England chose to force the issue, the colonists would have to decide—in that winter many were trying to make up their minds—whether they would be men and not English or whether they would be English and not men. [34]

To begin with, it would be mistaken to assume that all “the colonists” had drawn the line “as Englishmen and as men.” The colonists disagreed among themselves whether they should argue “from common rights” or “ from English rights” or from both. That issue was by no means resolved and would stay unresolved for quite some time. Some saw the appeal to natural rights as helpful; others did not. Those who did appeal to natural rights did so, not to argue that they were anything other than British, but actually to shore up and defend their British rights. Indeed, the colonists who argued from natural rights saw no incompatibility initially between claiming their rights as Englishmen and as men, for they believed the British constitution was founded on natural rights. The appeal to natural rights was initially viewed as a way to ensure that the colonies stayed British subjects. To be protected by one was to be protected by the other.

Of course natural rights arguments did imply a possible limitation on Parliament’s authority. And it may have been this implication, rather than their desire to revolt or cease being English, that lay behind some colonists’ hesitation to use natural rights arguments. But as we have seen the hesitation over natural rights language seems to have other sources as well. The colonists clearly had doubts about the best way to justify their rights. Natural rights arguments still seemed like an insecure foundation for their arguments and were thus used to bolster other types of arguments from the British constitution and the charters. We thus see a continued emphasis on their rights as British subjects and to the importance of the charters as actual social contracts.

As we shall now see, there was also another use of natural rights language that was on the verge of emerging. Some writers would soon envision themselves, not as men in general, as Morgan puts it, but as men of a different political entity. They saw the colonies as independent states within the Empire of Great Britain. We have already seen Hopkins and Adams use an early version of this argument. In what follows, we see this argument developed in detail relying on a new kind of natural right argument that lay inarticulate in Adam’s letters discussed above. In this case, natural rights are used to justify that the colonies are actually their own independent states and thus not subject to Parliament’s authority.

The Natural Right To Quit Society and The New Emerging Theory of the Empire

In early 1766, the colonies’ policy of embargoing British goods had created enough pressure on British merchants that they petitioned Parliament to repeal the Stamp Act. In the debates in Parliament, at least one British champion of the colonists, William Pitt, would allude to the natural rights of the colonies in making his arguments. [35]

In March 7-14, 1766, shortly before the repeal of the Stamp Act, one of the most developed uses of natural rights argument in this first phase of colonial resistance appears. A Virginian politician and lawyer by the name of Richard Bland gives the natural rights argument a new twist in his Pamphlet “An Inquiry into the Rights of the British Colonies.”[36] Bland was an important Virginian politician and had been in the Virginia House of Burgess during the initial Stamp Act resolves, when he interestingly enough voted against them. The reasons for his vote are unknown. He would later participate in the First Continental Congress in 1774 and was a member of the revolutionary conventions in 1775 and 1776.

It is striking how far Bland’s essay moves beyond the Virginia Stamp Act Resolves against which he voted. Bland is responding in this pamphlet in particular to the argument of Thomas Whately, in Regulations Lately Made. As mentioned earlier, in the spring of 1765, Whately had authored the official Parliamentary response to the colonial protests arguing that the colonies were virtually represented in Parliament. Bland’s pamphlet was written as a refutation of that position. Although not widely read or circulated at the time, some of his ideas were quoted in the Virginia Gazette and it was later published in England in 1769. [37]

Bland makes an ingenious use of natural rights arguments that anticipates in critical ways the writing of Thomas Jefferson. Unlike Hopkins or Otis, Bland does not seem to have any worry at all about the “metaphysical jargon” or historical accuracy of social compact theory. He argues unabashedly from a notion of social compact and State of Nature. But as we shall see his use of natural rights theory is quite different than anything considered thus far and points to a shift in how natural rights could be put to new use.

Men in a State of Nature are absolutely free and independent of one another as to sovereign Jurisdiction², 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; for it is evident, by the very Act of Association, that each Member subjects himself to the Authority of that Body in whom, by common Consent, the legislative Power of the State is placed: [38]

So far this is good standard Locke and Bland cites Locke, Vattel and Wollaston as sources of this view. But now Bland adds an important twist. It is worth quoting him in full.

But though they must submit to the Laws, so long as they remain Members of the Society, yet they retain so much of their natural Freedom as to have a Right to retire from the Society, to renounce the Benefits of it, to enter into another Society, and to settle in another Country; for their Engagements to the Society, and 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. Every Person therefore who is denied his Share in the Legislature of the State to which he had an original Right, and every Person who from his particular Circumstances is excluded from this great Privilege, and refuses to exercise his natural Right of quitting the Country, but remains in it, and continues to exercise the Rights of a Citizen in all other Respects, must be subject to the Laws which by these Acts he implicitly, or to use your own Phrase, virtually consents to: For Men may subject themselves to Laws, by consenting to them implicitly; that is, by conforming to them, by adhering to the Society, and accepting the Benefits of its Constitution, as well, as explicitly and directly, in their own Persons, or by their Representatives substituted in their Room.[39]

It is worth pondering this statement in detail as it offers both a new use of natural rights as well as anticipates in quite some detail the views of Thomas Jefferson in his pamphlet A Summary View, written on the eve of the First Continental Congress in 1774, nearly a decade later. Indeed, it is arguable that Bland here anticipates most of Jefferson’s major ideas in that essay and partly sets the philosophical foundation for the Declaration of Independence by doing so. Jefferson in later life credits Bland with having articulated the key ideas early in the debate but Jefferson arguably understates the importance of Bland’s essay in anticipating most of his own ideas in A Summary View. [40]

Although starting initially from a straightforward Lockean account of natural rights and social compact, Bland is using natural right theory in a different way than some other Americans and in a way that departs from Locke. Instead of emphasizing the right to be represented in society and the right to consent, although he acknowledges those, Bland emphasizes the natural right “to quit” or “retire” from society, “for their Engagements to the Society, and 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.”

In doing so, Bland both builds on but also departs from Locke. Locke did argue that every person at the age of maturity has the opportunity to decide whether to stay or take leave of a society. “For every Man’s Children being by Nature as free as himself, or any of his Ancestors ever were, may, whilst they are in that Freedom, choose what Society they will join themselves to, what common-wealth they will put themselves under.”[41] In Locke’s view, reaching the age of maturity is when people have the opportunity to leave their parental authority and make their own choice about under which political society they wish to live. “And thus the consent of Free-men, born under Government, which only makes them Members of it, being given separately in their turns, as each comes to be of Age, and not in a multitude together...”[42] When people leave society, they can start a new government “in any part of the world they find free or unpossessed.”[43]

But Locke is much more stringent than Bland on the grounds for leaving society once one a person has signed on and consented. Locke acknowledges that a person who gave “tacit” consent to live in a society, by having property under or any benefits from a particular government, can leave a society when use or benefit has been given up. “Whereas he that has once, by actual Consent, and by express Declaration given his Consent to be of any Commonwealth, is perpetually and indispensable obliged to be and remain unalterably a Subject to it, and can never be again in the liberty of the State of Nature: unless by any Calamity, the Government he was under comes to be dissolved, or else by some publick Act cuts him off from being any longer a Member of it.”[44] According to Locke, once explicit consent is given to join a political society, one cannot renounce that consent, unless the government is dissolved, some legal action puts an end to the relationship, or the government abuses its power. Locke of course does offer a lengthy discussion on the appropriate grounds for dissolving a government but Locke recognizes no individual “right to quit” society and certainly not for the reason of one’s individual happiness.[45] On the contrary, Locke acknowledges that when one joins society, one is going to have to conform to the wishes of the majority and thereby make a sacrifice and give up some of one’s natural freedom and some of one’s desires for the good of the whole. [46]

In arguing that people can quit society if it doesn’t conform to their happiness, Bland anticipates the Declaration’s shift of emphasis from “life, liberty and property” to “life, liberty and the pursuit of happiness.” Happiness in Bland and in the Declaration of Independence is described as a natural right. It was widely accepted in colonial writing before the Revolution that happiness was one way to describe “the end” or purpose of government.[47] Indeed, Locke often comes close to saying something similar, when explaining why people join society. “And ‘tis not without reason, that he seeks out, and is willing to joyn in Society with other 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.” Or again “ “But though Men, when they enter into Society, give up the Equality, Liberty, and Executive Power …all this to be directed to no other end, but the Peace, Safety, and publick good of the People.” [48]

It might be fair to characterize Locke as saying that people join society for reasons of happiness, though this is not the way Locke put it. But this is different than saying that each individual has a natural right to promote individual happiness and may leave society when it will no longer “conduce to their Happiness, which they have a natural Right to promote.” Locke would have been more comfortable describing the pursuit of happiness as one of the reasons people relinquish their natural rights to join society, rather than a way to describe the rights they have in nature before joining society, or the rights they have to justify quitting society. Calling “promotion of Happiness” an inherent right, as Bland does here, and as Jefferson does in the Declaration, would not have been language with which Locke would have been comfortable.

Why then did Bland emphasize the right to quit society for purposes of happiness? Whether Bland knew he disagreed with or was reinterpreting Locke is unclear. But by emphasizing this natural right to quit society, rather than the right to join society, Bland in a tour de force reinterprets the debate with Great Britain, reformulating the debate over virtual representation as well as the meaning of the colonial charters and immigration. At the same time, he fundamentally reinterprets Locke.

Let’s follow Bland’s ingenious and beautifully executed arguments. Bland starts with his founding assumption that each individual has a right to quit society whenever it is not conducive to happiness. If people do not exercise this right to quit society, and choose instead to stay in society, they have tacitly consented to the rules of that society.

This natural Right remains with every Man, and he cannot justly be deprived of it by any civil Authority. Every Person therefore who is denied his Share in the Legislature of the State to which he had an original Right, and every Person who from his particular Circumstances is excluded from this great Privilege, and refuses to exercise his natural Right of quitting the Country, but remains in it, and continues to exercise the Rights of a Citizen in all other Respects, must be subject to the Laws which by these Acts he implicitly, or to use your own Phrase, virtually consents to:[49]

According to Bland, the British subjects who remain in Great Britain without the right to vote are “implicitly” or “tacitly” consenting to the laws of society. One cannot say that they are “virtually represented” as Thomas Whately claimed; it is just that they have “tacitly consented” to live in British society despite their lack of representation. The notion of tacit consent is familiar from Locke as well. Locke had used “tacit” consent to describe the situation where a person comes to maturity and continues to live in a society without expressly consenting to become a member of that society. But Bland applies the concept here to a new context to explain the status of non-electors (i.e., people who are not eligible to be elected or vote). While these “non-electors” accept the status quo and tacitly consent to live in society, this hardly proves that they are in fact represented in Parliament or that situation is right.[50]

In language striking for its criticism of the British constitution, Bland condemns the British Constitution for failing to live up to standards of liberty.

If what you say is a real Fact, that nine Tenths of the People of Britain are deprived of the high Privilege of being Electors, it shows a great Defect in the present Constitution, which has departed so much from its original Purity; but never can prove that those People are even virtually represented in Parliament. And here give me Leave to observe that it would be a Work worthy of the best patriotick Spirits in the Nation to effectuate an Alteration in this putrid Part of the Constitution; and, by restoring it to its pristine Perfection, prevent any "Order or Rank of the Subjects from imposing upon or binding the rest without their Consent." But, I fear, the Gangrene has taken too deep Hold to be eradicated in these Days of Venality.[51]

On Bland’s view, then, because the British non-electors have not exercised their natural right to quit society, they are under its constitutional authority. But this does not mean they are “virtually represented.” Having proven that there is no “virtual consent” at work in Britain, Bland can dismiss Whately’s claims that the colonies are also virtually represented. The colonies did not tacitly consent to this situation the way the non-electors in Britain had.

But Bland goes further, turning to a second ingenious use of natural rights, again derived from the right to quit society. This time he reinterprets the meaning of the emigration to America and the colonial charters and founds it on natural rights. Recall that some earlier American had argued that the early immigrants to the colonies had brought British rights with them and that the colonial charters had granted or reinforced those rights. Other writers, like Samuel Adams, had argued that Massachusetts was founded as an independent entity and voluntarily concluded an agreement to join Great Britain. Bland now grounds this theory explicitly in natural rights.

I have observed before that when Subjects are deprived of their civil Rights, or are dissatisfied with the Place they hold in the Community, they have a natural Right to quit the Society of which they are Members, and to retire into another Country. Now when Men exercise this Right, and withdraw themselves from their Country, they recover their natural Freedom and Independence: the Jurisdiction and Sovereignty of the State they have quitted ceases; and if they unite, and by common Consent take Possession of a new Country, and form themselves into a political Society, they become a sovereign State, independent of the State from which they separated. If then the Subjects of England have a natural Right to relinquish their country, and by retiring from it, and associating together, to form a new political Society and independent State, they must have a Right, by Compact with the Sovereign of the Nation, to remove into a new Country, and to form a civil Establishment upon the Terms of the Compact. In such a Case, the Terms of the Compact must be obligatory and binding upon the Parties; they must be the Magna Charta, the fundamental Principles of Government, to this new Society; and every Infringement of them must be wrong, and may be opposed. It will be necessary then to examine whether any such Compact was entered into between the Sovereign and those English Subjects who established themselves in America.[52]

Instead of interpreting the migration to America as bringing British rights to the colonies, and making the colonies subjects of Great Britain, Bland flips the story on its head. The immigration to America now involves instances where emigrants exercised their natural right to leave their mother country (England), to come together, and form a new sovereign state (the new colonies). The colonial charters, instead of granting British rights to the colonies, represent completely new social compacts, a kind of new Magna Charta, of new sovereign states. The compacts are between the King, the head of the empire, and each individual state. And these colonial compacts represent constitutions independent of the British one.

Here then is a “federated view of the empire” identical to what Stephen Hopkins and Samuel Adams had articulated earlier but now with an explicit philosophical foundation: the colonies represented independent states, equal to the commons of England, but sharing the King as the head of government.[53] But Bland here provides what Hopkins and Adams had not: a philosophical foundation for this vision of the empire, this time anchored in a particular reading of natural rights. Bland does not tackle the important question of whether, to use Locke’s words, they set up government “in any part of the world they find free or unpossessed.” As we shall see, the question of whether the colonies are conquered territories emerges as an important question as the debate unfolds.[54]

Having argued that the colonies are independent states, Bland seems to equivocate back and forth about the extent of Parliament’s power.[55] On the one hand, he seems to concede Parliament’s authority “I will not dispute the Authority of the Parliament, which is without Doubt Supreme within the Body of the Kingdom, and cannot be abridged by any other Power.”[56] But after conceding Parliament’s authority in the next breath Bland makes it clear that this is authority based on power and not right. “I say that Power abstracted from Right cannot give a just Title to Dominion. If a Man invades my Property, he becomes an Aggressor, and puts himself into a State of War with me: I have a Right to oppose this Invader; If I have not Strength to repel him, I must submit, but he acquires no Right to my Estate which he has usurped.”[57] While Bland is clear that Parliament has no authority to tax the colonies, he equivocates on the question of trade. His argument about trade rests on an argument from equity rather than right.

If "the British Empire in Europe and in America is the same Power," if the " Subjects in both are the fame People, and all equally participate in the Adversity and Prosperity of the Whole," what Distinctions can the Difference of their Situations make, and why is this Distinction made between them? Why is the Trade of the Colonies more circumscribed than the Trade of Britain? And why are Impositions laid upon the one which are not laid upon the other?[58]

In a hopelessly confusing and difficult passage, Bland both admits and then denies Parliament’s power.

I acknowledge the Parliament is the sovereign legislative Power of the British Nation, and that by a full Exertion of their Power they can deprive the Colonists of the Freedom and other Benefits of the British Constitution which have been secured to them by our Kings; they can abrogate all their civil Rights and Liberties; but by what Right is it that the Parliament can exercise such a Power over the Colonists, who have as natural a Right to the Liberties and Privileges of Englishmen as if they were actually resident within the Kingdom? The Colonies are subordinate to the Authority of Parliament; subordinate I mean in Degree, but not absolutely so: For if by a Vote of the British Senate the Colonists were to be delivered up to the Rule of a French or Turkish Tyranny, they may refuse Obedience to such a Vote, and may oppose the Execution of it by Force. Great is the Power of Parliament, but, great as it 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… if the Colonists should be dismembered from the Nation by Act of Parliament, and abandoned to another Power, they have a natural Right to defend their Liberties by open Force.[59]

Thomas Jefferson was correct that Bland did not take his argument to its logical conclusions. Here Bland vacillates, seeing the colonists as entitled to both English rights by their compact with the King, and natural rights. While the colonists are subordinate to Parliament with respect to their liberties and privileges as English men, they are not subject to Parliament with respect to natural rights or their civil rights founded in compact. Others would go further than Bland in arguing that as independent states Parliament lacks all authority over the colonies. [60]

To summarize, Bland’ ingenious use of natural rights is of interest both for the ways it follows Locke and departs from Locke at the same time. Yet his selectivity is different in emphasis than Otis’. Bland seems more comfortable with the theory of social compact, apparently having no qualms about the theory’s lack of historical foundation or with the lack of sufficiently religious overtones about God’s appointment. Why is Bland not concerned with the problems of natural rights that earlier worried Hopkins and Otis? He does not say. Perhaps, he simply wasn’t aware or worried about these objections.

But it may be because Bland shifts the emphasis away from the origin of government to the individual right to leave society, having in mind primarily the individual’s right to quit society if it doesn’t conform to one’s happiness. Moreover by the time that Bland writes his essay, near the repeal of the Stamp Act, it was clear that the argument from British rights alone had its own problems. Starting from the uncontested starting point of British rights did not generate agreement about the rights of the colonies to tax themselves. Perhaps the earlier disagreements and doubts over natural rights theory and social compact had temporarily receded into the background as colonists sought other footing for their rights. But in the years to follow, some colonial writers still exhibit ambivalence over natural rights justifications, showing the doubts about such arguments had not gone completely away.

It is also evident that this particular appeal to natural rights here was tied to the new emerging American theory of the empire that saw the colonies as independent states, with independent legislatures, under the King. The burden now was to show, not that the Americans had British rights, but on the contrary, that they had their own distinctive American rights founded in several social compacts, namely, the charters. In this new theory, the crux was now to prove that the colonists had had a right to leave their mother country and set up an independent state. To make this claim, however, required finding a new natural right to quit society that Locke had never really formulated. In this argument, Bland completely anticipates Jefferson’s view in Summary View.

Because the colonial charters were now construed as new social compacts, Bland sidesteps the question of government’s theoretical origins too. For if the colonial charters were “social compacts”, as Bland suggests, they are empirical compacts between the sovereign and the states and thus as “real” and empirical as the British compact. But Bland had still to justify the colonists leaving and setting up a new government and this right the original natural rights theory did not fully provide.

Categories of Natural Rights Arguments

By the end of the Stamp Act controversy, the positions on natural rights had been staked out in their major outline, though there was by no means a consensus on whether natural rights argument should be used or a consistent approach to natural rights arguments in the debate. In what follows, we look at subsequent examples from each of these major approaches to natural rights in the period after the Stamp Act controversy. These same categories of approach will remain visible into the late 1760’s and into the 1770’s leading up to the Revolution. The Declaration of Independence actually assumes, builds on and consolidates and even papers over the differences of several of these various positions on natural rights as we shall see.

There are four fairly defined positions on natural rights arguments: First, some writers continue to avoid natural rights arguments completely, showing that there continued to be some ambivalence towards natural rights arguments. Of the writers who do appeal to natural rights, there are at least four different ways in which natural rights get developed. James Otis, Samuel Adams and Richard Bland, discussed above, represent these different approaches. [61] Like Adams, some writers rely on what can be thought of as a classically Lockean version of natural rights. These writers ground rights in essentially a theory of the State of Nature in which people give up some of their natural rights to join society. Typically, this classically Lockean theory is combined with and is used to complement arguments from British rights and colonial charters. As in the case of Samuel Adam’s letters discussed above, these other sources of rights are thought complementary to natural rights which typically are thought to be the most fundamental source of rights. The exact prioritization of each set of rights is sometimes left unclear and at other times made explicit. This view of natural rights is often thought of as “the” colonial view of natural rights.

The second strand of writings that uses natural rights tends to follows in the path of Richard Bland, and focuses on the specific right to quit society.[62] In contrast to the first use of natural rights, which buttresses the claims to British rights, this strand argues that the colonies were essentially independent political entities that created new social compacts with Great Britain. While these social compacts were modeled on British rights, the colonists in this case have British rights because they chose them, not because they inherited them. Neither of these lines of argument immediately calls for revolution, though the “right to quit” argument leads more directly to the argument that Parliament lacks any authority over the colonies including the right to regulate trade.

The third strand of natural rights arguments ponders the relationship of Christian and Lockean notions. This strand of rights thinking sometimes sounds very much like a classical Lockean theory. But at other times, these religious political writings articulate a theory of society, consent, and human freedom that produce something new, in both language and in concept.

All of these arguments aimed at the same result: To deny Parliament the power to tax the colonies and in some cases to regulate the commerce of the colonies. And all could in the future be used to justify a right to revolt. But these various versions were not all consistent or necessarily compatible with each other. Papering over some of the differences in theories would be one achievement if not goal of the Declaration.

In what follows, we look at examples of each of these tendencies in the period between the end of the Stamp Act Controversy and the Declaration of Independence.

Continued Avoidance of Natural Rights Arguments

There is continued evidence beyond the Stamp Act controversy that some colonists still had qualms about relying on natural rights arguments. The repeal of the Stamp Act in March 1765 had certainly ended the immediate controversy, but the Declaratory Act, issued at the same time, had insisted that Parliament still had full authority to make any laws whatsoever for the colonies. In late spring 1767, a new set of acts proposed by Charles Townshend, Chancellor of the Exchequer, stirred up tensions again. Like Grenville, Townshend intended to reduce British taxes by more efficiently collecting duties levied on American trade. To do so, he tightened customs administration and sponsored duties on colonial imports of paper, glass, lead and tea exported from Britain to the colonies. The Townshend Acts, as they were referred to, were designed to test the premise that duties imposed on goods imported by the colonies were legal while internal taxes (like the Stamp Act) were not, a distinction that some colonial writers had earlier advocated.

The most widely read colonial response to the Townshend acts was the twelve Letters of a Pennsylvania Farmer, written by Philadelphia lawyer and politician, John Dickinson beginning in December 1767. Dickinson we recall had been involved in drafting the resolves of the Stamp Act Congress. On the one hand, Dickinson was clearly trying to awaken his follow colonists to what he regarded as the seriousness of the new acts. Insisting they were as serious as the earlier Stamp Acts, Dickinson urges the colonists to react as strenuously as they had earlier. “Here then, my dear countrymen, rouse yourselves, and behold the ruin hanging over your heads. If you ONCE admit, that Great-Britain may lay duties upon her exportations to us, for the purpose of levying money on us only, she then will have nothing to do, but to lay those duties on the articles which she prohibits us to manufacture—and the tragedy of American liberty is finished.” Or: “In short, if they have a right to levy a tax of one penny upon us, they have a right to levy a million upon us: For where does their right stop?”[63]

Dickinson argues, in distinctions familiar from earlier writings we have seen, that Parliament does have the right to control imperial commerce for the good of the whole empire but not to tax the colonies. “The parliament unquestionably possesses a legal authority to regulate the trade of Great-Britain, and all her colonies. Such an authority is essential to the relation between a mother country and her colonies; and necessary for the common good of all.” Rejecting arguments like those of Adams and Bland that viewed the colonies as separate entitles, he writes:[64]

He, who considers these provinces as states distinct from the British Empire, has very slender notions of justice, or of their interests. We are but parts of a whole; and therefore there must exist a power somewhere, to preside, and preserve the connection in due order. This power is lodged in the parliament; and we are as much dependent on Great Britain, as a perfectly free people can be on another.[65]

But while Parliament has the right to regulate trade, it does not have the right to tax the colonies, whether those are internal or external taxes. Dickinson rejects arguments of colonists who say the Stamp Acts were worse because they imposed internal taxes whereas the new Townshend acts were “external” taxes placed on trade. “To this I answer, with a total denial of the power of parliament to lay upon these colonies any ‘tax’ whatever.” [66] Dickinson insists that the colonists can discern the intention behind an act, to determine if it is a legitimate regulation of trade or an inappropriate external tax.

For our purposes it is significant that throughout his Farmer letters in 1767, Dickinson nowhere appeals to natural rights explicitly as a justification of colonial rights. Indeed, he barely invokes rights arguments of any sort, even though he everywhere assumes the Townshend acts are denying American freedom. He writes: “Those who are taxed without their own consent, expressed by themselves or their representatives, are slaves.” “WHO ARE A FREE PEOPLE? Not those, over whom government is reasonable and equitably exercised, but those, who live under a government so constitutionally checked and controlled, that proper provision is made against its being otherwise exercised.”[67]

Here Dickinson comes close to an outright rejection of natural rights theory. Freedom is not those over whom government is “reasonable and equitably exercised.” Instead he finds freedom in the checks and balances of government. And again:

No free people ever existed, or can ever exist, without keeping, to use a common, but strong expression, ‘the purse strings,’ in their own hands. Where this is the case, they have a constitutional check upon the administration, which may thereby be brought into order without violence. …The elegant and ingenious Mr. Hume, speaking of the Anglo-Norman government…Thus this great man, whose political reflections are so much admired, makes this power one of the foundations of liberty. [68]

Is it possible to form an idea of a slavery more compleat, more miserable, more disgraceful, than that of a people, where justice is administered, government exercised, and a standing army maintained, AT THE EXPENSE OF THE PEOPLE, and yet WITHOUT THE LEAST DEPENDENCE UPON THEM?[69]

But despite powerful statements about liberty such as these, one looks in vain for a justification of liberty or rights theory, which is never given but everywhere assumed. What are the grounds of colonial rights? The only time that Dickinson offers a justification of colonial rights is when he quotes the resolves of the Stamp Act Congress, which he had of course drafted but which avoided the use of natural rights.

Quoting the third resolve of the Stamp Act Congress, and referring to these resolves as the “American Bill of Rights”, this is as close as Dickinson gets to offering a theory of freedom

III. “That it is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that NO TAX‡ be imposed on them, except with their own consent, given personally, or by their representatives.”[70]

We see here again allusion to “the essential freedom of a people” and “undoubted right of Englishmen”. But Dickinson never alludes to natural rights arguments explicitly and we have no way of knowing on what he grounded those essential rights. Only on one occasion (letter seven) does Dickinson quote Locke: “If they have any right to tax us—then, whether our own money shall continue in our own pockets or not, depends no longer on us, but on them. ‘There is nothing which’ we ‘can call our own; or, to use the words of Mr. Locke—WHAT PROPERTY HAVE’ WE ‘IN THAT, WHICH ANOTHER MAY, BY RIGHT, TAKE, WHEN HE PLEASES, TO HIMSELF?’” This is as close as Dickinson gets to Locke or an explicit statement of natural rights. His only other reference to Locke is in a quote he cites approvingly of Lord Cambden at the end of Letter 7.

Instead, Dickinson seems to assume that colonies’ rights were given by Great Britain to the colonies as a privilege. After reviewing all the benefits of the colonies derived to the mother country, Dickinson explains that property is given as recompense to them. This is certainly a far cry from a natural rights theory.

For all these powers, established by the mother country over the colonies; for all these immense emoluments derived by her from them; for all their difficulties and distresses in fixing themselves, what was the recompense made them? A communication of her rights in general, and particularly of that great one, the foundation of all the rest—that their property, acquired with so much pain and hazard, should be disposed of by none but themselves*—or, to use the beautiful and emphatic language of the sacred scriptures,† “that they should sit every man under his vine, and under his fig-tree, and NONE SHOULD MAKE THEM AFRAID.”[71] [emphasis added]

The right to property is here described as a “recompense” from Great Britain to America for the benefits that accrued to the mother country. No one arguing from natural rights would ground the American right of property this way. Moreover, the religious overtones in Dickinson’s essays, though not frequent, are obvious here and elsewhere.[72] Dickinson credits American freedom to Divine Providence.

But while Divine Providence, that gave me existence in a land of freedom, permits my head to think, my lips to speak, and my hand to move, I shall so highly and gratefully value the blessing received as to take care that my silence and inactivity shall not give my implied assent to any act, degrading my brethren and myself from the birthright, wherewith heaven itself “hath made us free.”*[73]

Quoting Scripture, Dickinson appeals to freedom as a grant from God. The absence of natural rights language or even a fully articulated rights theory in Dickinson would seem consistent with his ongoing commitment that the colonies to remain part of Great Britain. Dickinson rejects any talk of the colonies as “independent states” or of independence generally. “But if once we are separated from our mother country, what new form of government shall we adopt, or where shall we find another Britain to supply our loss? Torn from the body, to which we are united by religion, liberty, laws, affections, relation, language and commerce, we must bleed at every vein.”[74] Dickinson, as is well known, would later refuse to sign the Declaration of Independence, believing that there was still some hope for reconciliation between the colonies and Great Britain in 1776.

We see in Dickinson, then, several impulses familiar from others who avoided natural rights language: a commitment to subordination to Parliament’s authority, a resistance to seeing the colonies as independent entities, and an inclination towards grounding freedom in divine appointment.

To summarize, Dickinson’s Farmers Letters in 1767 barely provided a theory of rights at all and when they did allude to rights, they grounded them in British rights that had been granted the colonists. Eight years later, we will see Dickinson rewriting Jefferson’s draft of the Declaration of the Causes and Necessity of War, which avoided natural rights arguments altogether again. In this case, too, we will see both a heavy use of theological and religious language, linking freedom to God’s actions.

Natural Rights As A Complement To British American Rights

If one strand of colonial arguments continued to avoid natural rights and preferred theological language as a foundation for rights, other strands began to put natural rights language front and center. In one strand, natural rights is used in what can be called a classical Lockean version. By this we mean that the general outlines of a natural rights theory are evident with little alternation of either the general assumptions or the language in which that theory was embedded.

As an example of this first strand, we can turn to an essay called “A State of the Rights of the Colonists” in 1772, which was likely written by Sam Adams.[75] We recall that by December 1765, natural rights language had already moved to the fore in Adams’ letters. Now in 1772, Samuel Adams requested that a committee be appointed to state the rights of the colonists. The immediate issue that provoked the committee was the decision by the ministry in England to pay the salaries of the Superior Court Judges from custom duties. A committee of twenty-one men was created and led by men close to Adams. The output was “A State of the Rights of the Colonists”[76] But whoever wrote it, this essay offers a classic Lockean style argument with social contract theory and natural rights front and center.

The essay puts natural rights front and center in the argument. It begins:

Among the natural rights of the Colonists are these: First, a Right to Life; Secondly to Liberty, thirdly to Property; together with the Right to support and defend them in the best manner they can. Those are evident Branches of, rather than deductions from the Duty of Self Preservation, commonly called the first Law of Nature.

All Men have a Right to remain in a State of Nature as long as they please; And in case of intolerable Oppression, Civil or Religious, to leave the Society they belong to, and enter into another. When men enter into Society it is by voluntary consent, and they have a right to demand and insist upon the performance of such conditions, And previous limitations as form an equitable original compact. [77]

Note that Adams follows the Lockean view that “all men have a right to stay in the state of nature as long as they please”. We have seen that Otis already contested that view and we shall see later religious statements that argue that the state of nature is essentially a state of sin. Adams continues from here to write a dozen paragraphs giving a fairly straightforward uncontroversial summary of natural rights theory. The only noticeable difference from Locke’s Second Treatise is that Adams also argues that freedom of faith is part of natural rights, referring explicitly to Locke’s own views on religion in Locke’s A Letter Concerning Toleration. We note here that Adams is more stringent than Bland in the grounds for quitting society, citing intolerable civil or religious oppression rather than happiness as grounds for leaving the society to which they belong.

After this first section on classic Lockean natural rights, the essay goes on to consider “ the rights of colonists as Christians”. “This may be best understood by reading and carefully studying the institutes of the great Lawgiver and head of the Christian Church: which are to be fond closely written and promulgated in the New Testament.”[78] Adam’s does not here specify the content of the Christian “institutes” but he signals that he regards natural rights and Christian rights to be compatible. Adams then indicates that freedom of faith is one of the core principles of the Act of Toleration in Britain and reaches back to the Magna Charta.

After discussing Christian rights, Adam’s goes on to talk about his third category of rights, those of the “colonists as subjects.” Regarding the latter, they do not rest on the charters: “All Persons born in the British American Colonies are by the laws of God and nature, and by the Common law of England, exclusive of all charters from the Crown, well Entitled, and by Acts of the British Parliament are declared to be entitled to all the natural essential, inherent & inseperable Rights Liberties and Privileges of Subjects born in Great Britain, or within the Realm.[79]

For Adams by this point it is explicit that natural law stands outside common law and limits it: “The first fundamental positive law of all Commonwealths or States, is the establishing the legislative power; as the first fundamental natural law also, which is to govern even the legislative power itself, is the preservation of the Society.”[80] The rest of Adam’s essay is an enumeration of the particular actions taken by Parliament that violate American natural and colonial rights.

A second more sophisticated example of a classical Lockean natural rights argument is found in James Wilson’s pamphlet, Considerations on the Nature and Extent of the Legislative Authority of the British Parliament, written in 1770 but not published until 1774. This essay will serve as an interesting point of contrast for Jefferson’s A Summary View, which we examine below, for they come to similar conclusions but by very different routes. We know that Jefferson read this essay as he quotes from it in his commonplace book and there is some speculation that this essay influenced his writing of the Declaration of Independence. I will discuss this issue in more detail below. Here the point is to examine another use of explicit natural rights argument to justify the colonists’ rights.

The heart of Wilson’s essay addresses the question whether Parliament has authority over the colonies. His answer is that it does not. Like Bland and Hopkins before him, Wilson argues that the colonies are independent states which Parliament has no right to tax or even to regulate their commerce. While the colonies as free political states are not subject to parliament’s authority, the colonists as individuals are still subjects and have allegiance and duties to the Crown. But Wilson grounds his argument, not in a right to quit society, as did Bland and as will Jefferson, but much more explicitly in an explicit natural rights theory that limits Parliament’s authority, in the same vein as Samuel Adams.

Specifically, Wilson takes aim at the commentaries of Blackstone, the British jurist who wrote authoritative “commentaries” on the British common law in the mid 1760s. Blackstone himself grounded the British constitution in natural rights. But Blackstone argued that the colonists were conquered territories and for that reason subject to Parliament’s supreme authority. Acknowledging Blackstone’s view that there must be a supreme authority in every society, and that “by the constitution of Great Britain” the authority is vested in “the king, the lords, and commons,” Wilson nonetheless adds an important qualification:

I admit that the principle, on which this argument is founded, is of great importance: its importance, however, is derived from its tendency to promote the ultimate end of all government. But if the application of it would, in any instance, destroy, instead of promoting, that end, it ought, in that instance, to be rejected: for to admit it, would be to sacrifice the end to the means, which are valuable only so far as they advance it.[81]

All men are, by nature, equal and free: 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: such consent was given with a view to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequence is, that the happiness of the society is the first law of every government. [82]

In language that anticipates the Declaration of Independence and that is very Lockean in character, although Locke is nowhere quoted, Wilson begins with a very classical natural rights argument that “all men are, by nature, equal and free” and that “all lawful government is founded on the consent of those who are subject to it.” Wilson then goes on to say that the consent was given “to ensure and to increase the happiness of the governed, above what they could enjoy in an independent state.” So far Wilson has not said anything that Locke would likely have objected to, though Locke does not use the term happiness in this way. But Wilson arguably comes closer to Locke’s view than does Samuel Adams who, as noted above, argued that “the first fundamental natural law also, which is to govern even the legislative power itself, is the preservation of the Society.”[83] For Locke, people relinquish natural rights in order to make their lives better, not just to preserve society. Interestingly enough, Wilson does not quote Locke here at all and instead cites Jean-Jacque Burlamanqi, a natural law professor in Geneva, whose “The Principles of Natural and Political Law” was translated into English in 1763 and taught in American universities. [84] Burlamanqi is cited as the authority for the conclusion that “The consequence is, that the happiness of the society is the first law of every government.” What does it mean to talk about the happiness of society?

This rule is founded on the law of nature: it must control every political maxim: it must regulate the legislature itself.4 The people have a right to insist that this rule be observed; and are entitled to demand a moral security that the legislature will observe it. If they have not the first, they are slaves; if they have not the second, they are, every moment, exposed to slavery. [85]

Although Wilson’s use of the term happiness here could be leveraged to move quite far from a Lockean point of view, in fact Wilson stays very close to a traditional theory of natural rights. A large part of the essay to follow explores what it means “to demand a moral security that the legislature will observe it.” As the essay unfolds it is clear that Wilson has in mind a very traditional Lockean notion of representation. He reviews the constraints that developed to ensure Parliament represents the views of commons. Those measures include rules of representation and the fact that the members of the House of Commons live among their constituents and are thus affected by the laws they make and also worry about their reputations.

But the House of Commons lacks those constraints when it comes to the Americans.

But are the representatives of the commons of Great Britain the representatives of the Americans? Are they elected by the Americans? Are they such as the Americans, if they had the power of election, would probably elect? Do they know the interest of the Americans? Does their own interest prompt them to pursue the interest of the Americans? If they do not pursue it, have the Americans power to punish them? Can the Americans remove unfaithful members at every new election? …

The answer to all these questions is “Obviously not.” The inevitable conclusion is that Parliament cannot makes laws for Americans since it is not bound by “a moral security that the legislature” will heed Americans’ happiness. Here then is a familiar argument that the house of commons cannot represent Americans because of their geographic distance from the House of Commons. But now that argument is grounded in natural rights.

In contrast to Bland, then, Wilson never argues that the Americans ancestors had a right to quit their society and establish new societies. The Americans brought their British rights with them to the new colonies:

Can the Americans, who are descended from British ancestors, and inherit all their rights, be blamed—can they be blamed by their brethren in Britain—for claiming still to enjoy those rights?

Is British freedom denominated from the soil, or from the people of Britain? If from the latter, do they lose it by quitting the soil? Do those, who embark, freemen, in Great Britain, disembark, slaves, in America? Are those, who fled from the oppression of regal and ministerial tyranny, now reduced to a state of vassalage to those, who, then, equally felt the same oppression?

In Wilson’s view, the Americans brought British rights with them to the new world and held them by birthright. They did not give up those rights when they left Britain, the way Bland and later Jefferson would argue. The limit on Parliament’s power, therefore, does not derive from their quitting their country and founding independent states. It derives rather from natural rights such as the right to representation that transcends and limit government authority in general. Since the British commons can not adhere “to the moral security” required to protect American happiness, the commons can not have authority over the colonies, as a principle of natural rights. Therefore the colonies have to function with independent legislaturesto meet the basic requirement of natural rights.

In arguing that Americans never lost their British rights, Wilson contests the view of Blackstone that the colonies are conquered territories. Though endorsing natural rights as the foundation of the British constitution, Blackstone had concluded that the American colonies were conquered territories and subject therefore to the power of parliament. Wilson quotes Blackstone:

Besides these adjacent islands (Jersey, etc.), our more distant plantations in America and elsewhere are also, in some respects, subject to the English laws. Plantations, or colonies in distant countries, are either such where the lands are claimed in right of occupancy only, by finding them desart and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. Our American plantations are principally of this latter sort; being obtained in the last century, either by right of conquest, and driving out the natives (with what natural justice I shall not at present inquire) or by treaties." 1. Bl Com. 106. 107.

Wilson rejects the view that the colonies are conquered territories.

The original and true ground of the superiority of Great Britain over the American colonies is not shown in any book of the law, unless, as I have already observed, it be derived from the right of conquest. But I have proved, and I hope satisfactorily, that this right is altogether inapplicable to the colonists. The original of the superiority of Great Britain over the colonies is, then, unaccounted for; … we may justly conclude, that the only reason why it is not accounted for, is, that it cannot be accounted for. The superiority of Great Britain over the colonies ought, therefore, to be rejected; and the dependence of the colonies upon her, if it is to be construed into "an obligation to conform to the will or law of the superior state," ought, in this sense, to be rejected also.

It is unfortunate that Wilson does not delve more into the question of whether the colonies are conquered territories or into Blackstone’s parenthetical remark that the colonies were founded by “driving out the natives (with what natural justice I shall not at present inquire)”. The founders were so focused on the relationship of their rights with respect to Great Britain, that they did not in these reflections ponder the question of the sovereign or natural rights of the native American populations.[86]

In any case, Wilson draws a legal analogy between the American colonies and the Irish.

It is very observable, that the reason, which those reverend sages of the law gave, why the people in Ireland were not bound by an act of parliament made in England, was the same with that, on which the Americans have founded their opposition to the late statutes made concerning them. The Irish did not send members to parliament;

But the analogy with the Irish goes beyond the limitation on Parliament’s authority. Like the Irish, the Americans are still “subjects of the Crown.” Being subjects of the Crown means they still have allegiance to the King and benefit from his protection:

From this authority it follows, that it is by no means a rule, that the authority of parliament extends to all the subjects of the crown. The inhabitants of Ireland were the subjects of the king as of his crown of England; but it is expressly resolved, in the most solemn manner, that the inhabitants of Ireland are not bound by the statutes of England. Allegiance to the king and obedience to the parliament are founded on very different principles. The former is founded on protection; the latter, on representation. An inattention to this difference has produced, I apprehend, much uncertainty and confusion in our ideas concerning the connection, which ought to subsist between Great Britain and the American colonies.

Wilson goes on to apply this same distinction to the Americans. They are not subject to the authority of Parliament but they are still subjects of the Crown. In migrating to America they never lost that latter status. “They never quit society.” As subjects of the Crown, they are still protected by the King and still have allegiance to him.

An Englishman, who removes to foreign countries, however distant from England, owes the same allegiance to his k