[The following is a chapter in Individual Rights Reconsidered: Are the Truths of the U.S. Declaration of Independence Lasting?, edited by Tibor R. Machan (Stanford: Hoover Institution Press, 2001).]
The Declaration of Independence is almost certainly the most powerful piece of political rhetoric ever penned. Although written for a specific historical purpose, it nevertheless enunciates a political philosophy that transcends the particularities of time and place and offers a general theory of rights and of the legitimacy of resistance against established authority. Despite its timelessness, however, the Declaration, especially its listing of the grievances against the Crown, are best read against the backdrop of late eighteenth-century North American history.
It is fair to say that when hostilities broke out between the British and Americans at Lexington and Concord in April 1775 few if any colonists supported independence from Great Britain. The First Continental Congress, which had met in Philadelphia during September and October of 1774, had repeatedly reaffirmed the colonies underlying loyalties to the British Crown once their grievances had been redressed. Indeed, a second Congress was to convene in May 1775 only if the colonies continued to find themselves burdened by the oppressive legislation to which they so strenuously objected. Meanwhile the colonies bound themselves to implement a ban on all imports from Great Britain, to discontinue the slave trade, and to embargo all exports to Britain, Ireland, and the West Indies. This Continental Association was met not with offers of conciliation, as many had hoped, but with a policy directed at punishing the colonies for their insubordination.
In February 1775 the British Parliament declared that the colony of Massachusetts was in a state of rebellion and in the following month King George III endorsed the New England Restraining Act, forbidding the New England colonies from trading with any nation except Britain and prohibiting them from fishing in the North Atlantic. Two weeks later, upon learning that several other colonies had ratified the Continental Association, the Restraining Act was extended to Maryland, New Jersey, Pennsylvania, South Carolina, and Virginia. Yet, despite these measures, the Second Continental Congress, on 5 July 1775, adopted John Dickinsons Olive Branch Petition which expressed the colonists earnest hope for reconciliation with the motherland and which called upon the King to work toward the reestablishment of peace. Even the Declaration of the Causes and Necessities of Taking Up Arms, written by Dickinson and Thomas Jefferson and endorsed by Congress on the day following adoption of the Olive Branch Petition, rejected independence while asserting that the colonists would not be enslaved even at the cost of their lives.
While these formal resolutions were enacted by the Continental Congress, events were quickly moving toward the colonies formal separation from Great Britain. On 20 December 1775 the Massachusetts Provincial Congress replaced Thomas Cushing, a conservative, with Elbridge Gerry, a radical and follower of Samuel Adams, as a delegate to the Continental Congress, thus securing for the pro-independence forces a majority in the Massachusetts delegation. In March, by which time Gerry had arrived in Philadelphia to take his seat, the Virginia delegation had shifted into the radical camp with the defection of Benjamin Harrison from the conservative to the independence faction and the return to Philadelphia of Richard Henry Lee. The delegations of the two most populous colonies were thus united in supporting independence by the early spring of 1776.
The impetus toward separation was further accelerated by news from Britain. When on 12 September 1775 Congress had reconvened from its summer recess it learned that George III had refused to receive the Olive Branch Petition and had proclaimed the colonies to be in open and avowed rebellion. Nor was the Kings speech from the throne at the opening of Parliament, delivered on 26 October, any more conciliatory. Despite the colonists numerous protestations of their continuing loyalty to the Crown, George maintained that the rebellious war now levied is become more general, and is manifestly carried on for the purpose of establishing an independent Empire. In anticipation of the British use of mercenary troops in America the King also alluded to the most friendly offers of foreign assistance which he had received. Some months later Congress received the news that Parliament had enacted legislation declaring the colonies beyond the protection of the Crown and prohibiting all trade with them. The Act further authorized the forfeiture of captured American ships and cargoes as enemy property and the impressments of captured crews onto British ships of war. John Adams viewed this action of Parliament as a virtual declaration that the colonies were to be treated as independent of Great Britain, noting that It may be fortunate that the Act of Independency should come from the British Parliament rather than the American Congress: But it is very odd that Americans should hesitate at accepting such a gift.
Perhaps the single most decisive factor in putting an end to such hesitation was the publication of Thomas Paines Common Sense on 9 January 1776. In what must be regarded as one of the most electrifying political polemics ever written, Paine described the ties that connected the colonists to the mother country as chains that fettered a flourishing people, depriving them of the freedom that was their birthright. No benefit, no advantage nor profit, Paine argued, could be gained from reconciliation with the British monarch, a tyrant whose hands were already stained with the blood of American patriots. Monarchy, Paine contended, inevitably corrupted those who held political power which, unconstrained, extended itself into every facet of social and economic life. For Paine the legitimate functions of government were simple and few, securing freedom and property and the free exercise of conscience. The enormous complexity of the British government under which the colonists suffered served only to misdirect the colonists from the locus of corruption, the hereditary and far-reaching nature of the Crown. Europes squabbles were not Americas and the corruption endemic to European princes need not be imported to this continent.
The success of Paines pamphlet was nothing short of phenomenal. It is reputed to have sold half a million copies and excerpts appeared in newspapers throughout the colonies. In the crucial days before 4 July it would have been close to impossible for any literate colonist not to have been familiar with the arguments Paine put forward nor to have been unaffected by them. More important, its effects were almost immediate and the debate between the radicals and those supporting reconciliation which raged throughout the colonial press following its publication tipped decisively toward independence.
It is repugnant to reason, to the universal order of things, to all examples from the former ages, to suppose that this continent can longer remain subject to any external power. The most sanguine in Britain does not think so. The utmost stretch of human wisdom cannot, at this time, compass a plan short of separation, which can promise the continent even a years security. Reconciliation is now a fallacious dream. Nature hath deserted the connection, and Art cannot supply her place.
By the spring of 1776, the momentum for independence had reached a point where no other course was politically feasible. On 12 April the North Carolina Provincial Congress empowered its delegation to the Continental Congress to support a motion declaring the independence of the colonies from Great Britain. One month later, on 15 May, the Virginia Convention instructed the colonys delegates to propose that Congress declare the United Colonies free and independent States; absolved from all allegiance to the British Crown or Parliament of Great Britain. The Continental Congress itself had not been inactive during this period. On the same day that the Virginia Convention in Williamsburg was authorizing its delegates to propose independence, the Congress adopted a resolution drafted by John Adams recommending that the colonies assume full powers of government and that all exercise of authority under the Crown be suppressed. Both the North Carolina and Virginia declarations were presented to Congress on the same day, 27 May. Within the next few days Connecticut, New Hampshire, and Delaware all adopted new instructions to their delegations in Philadelphia. Finally, on 7 June, in compliance with the instructions received from Virginia, Richard Henry Lee, the colonys senior delegate, moved, seconded by John Adams, that these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.
The conservative opposition in Congress could, by this point, only delay passage of the Lee resolution, but the pro-separatist forces were conscious that a declaration of this sort would have far greater impact were it supported by all the colonies. Consequently, it was agreed that Congress postpone consideration of Lees motion for three weeks, by which time, it was thought, the middle colonies could be brought into line. As Jefferson remarked in his notes on the proceedings of the Congress, It appearing in the course of these debates that the colonies of N. York, New Jersey, Pennsylvania, Delaware, Maryland & South Carolina were not yet matured for falling from the parent stem, but that they were fast advancing to that state, it was thought most prudent to wait a while for them, and to postpone the final decision to July 1. There could be little doubt about the ultimate outcome of a vote on the issue, however, and on 11 June Congress appointed a committee to draft a declaration to serve as a preamble to Lees resolution. The committee consisted of John Adams, Benjamin Franklin, Thomas Jefferson, and Roger Sherman, all of whom were outspoken supporters of independence, and Robert R. Livingston, its sole conservative member. The choice of Jefferson as the senior member of the committeehis name came first in the order of the votewas particularly felicitous. A writer of remarkable power and great elegance, Jefferson was selected by the committee to prepare a draft of the document, which, as it was to turn out, was presented to the Congress for consideration with only minor alterations.
Jeffersons draft did not, nor was it intended to, offer an original theory of government upon which the colonists were to rely in rebelling against the Crown. In formulating the political principles that underpinned the Revolutionand revolution it certainly wasJefferson, as he was later to write, sought
not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, [the Declaration] was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, such as Aristotle, Cicero, Locke, Sidney, etc.
Indeed, absence of originality of principle can hardly be viewed as legitimate criticism of a document intended to justify to a new nation and to the world the necessity of resorting to arms against a tyrannous government. Jeffersons task was to draft a statement setting forth the justice of the American cause that would prove acceptable not only to himself but to the colonies delegates assembled in Philadelphiaand, ultimately, to the American people. In doing this, he composed a document that captured the ideological substance of American revolutionary thought, which was grounded in a theory of natural, inalienable rights. It might well be true of the Declaration, as John Adams observed some years later, that there is not an idea in it but what has been hackneyed in Congress for two years before. But, although meant as criticism, this charge only strengthens ones admiration for Jeffersons handiwork in distilling the revolutionaries philosophy of government and their political aspirations in so clear and compelling a manner.
The opening paragraph of the Declaration provides the reasons for its publication:
When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the Laws of Nature and of Natures God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
Jefferson then sets forth the ideological foundations upon which the Revolution was predicated, in which he explicates his references to the Laws of Nature and of Natures God:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and, accordingly, all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But, when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.
There follows a catalog of the abuses and usurpations that the colonies had suffered at the hands of the British Crown and from which no redress appeared possible. As important as was the list of grievances, however, it is the documents preamble, which contains the Declarations political philosophy, that has occupied the close attention of political theorists and intellectual historians since its first appearance.
Almost a commonplace in the last quarter of the eighteenth century, the theory of government propounded in the Declaration bears the indelible imprint of Whig revolutionary thought and particularly of its chief exponent, John Locke. The popularity of Lockes political views among the colonists, both directly through his works and through the large number of political writings that he influenced, was immense. It is not surprising that the sentiments Jefferson expressedat times even the phrasing he employedregarding the social contract, the nature of individual rights, and the right to rebellion echoed Lockes Second Treatise of Government. Examinations of booksellers lists and the catalogs of institutional, circulating, and private libraries in the period before 1776 shows Lockes works, both philosophical and political, to have been readily accessible to any colonist, as indeed were the other, lesser Whig treatises, particularly Algernon Sidneys Discourses Concerning Government and John Trenchard and Thomas Gordons Catos Letters. Bernard Bailyn, in his definitive analysis of the sources of American revolutionary ideology, has found that in pamphlet after pamphlet the American writers cited Locke on natural rights and on the social and governmental contract, and that Lockes treatises stood with Catos Letters as the most authoritative statement of the nature of political liberty. Indeed, if any one political work could be said to capture the harmonizing sentiments of the day in the period immediately prior to the American Revolution, it would be Lockes Second Treatise.
Although not published until after James II had been successfully deposed, Lockes work on government was actually written some ten years earlier. Peter Laslett has shown that the composition of The Second Treatiseat least a substantial portion of itdates from 16791680, a decade before the Glorious Revolution. As Laslett notes, the treatise was a demand for a revolution to be brought about, not the rationalization of a revolution in need of defence, and, as such, its conclusions respecting the limits of authority of the civil magistrate and the right to revolt against a government that exceeded those limits were particularly apposite. Indeed, the arguments justifying rebellion against a Stuart despot, as put forward by Locke, would serve quite adequately against a Hanoverian or any other tyrant.
The main outlines of Lockes doctrine are clear and unambiguous: All men are by nature free and independent beings, originally constrained solely by the law of nature, that is, the rule of right reason. The state of nature into which men are originally born, although not a pre-social one, is a pre-political one; and although pre-political, mankinds original state is not lawless inasmuch as the law of nature dictates that no man may harm another in his life, health, liberty, or possessions. It further follows from the law of nature that men may be restrained from invading others rights and may be punished by others for doing so. Governments are established solely for the purpose of better protecting the rights with which all men are naturally endowed; the power to protect ones life, liberty, and estate against injury and to judge and punish those who offend against them can be surrendered to the civil magistrate only by individual consent. Once a government acts beyond its trustthe preservation of the lives, liberties, and estates of its subjectsit ceases being legitimate and may no longer command the allegiance of the people. At that point revolution is lawful.
The crucial test of all government, no matter how constituted, lies in whether or not it respects the inalienable rights with which all men are endowed. These rights, Locke maintained, owe their existence neither to convention nor to the presence of a sovereign who, as Hobbes had argued, both created them and made their exercise possible. They are rooted in mans very nature and are unconditional and nontransferable. Men do not, nor can they, compromise them by entering into civil society; nor can these rights be modified in some way to conform to the dictates of the magistrate. The transcendent purpose of government is the preservation of these rights. Locke wrote: The great and chief end therefore, of Mens uniting into Commonwealths, and putting themselves under Government, is the Preservation of their Property. And property, Locke noted in the sentence preceding, refers to mens Lives, Liberties and Estates. The Declaration affirms this conclusion when it asserts that all men are endowed by their Creator with certain unalienable Rights, that among these are, Life, Liberty and the pursuit of Happiness and That to secure these rights, Governments are instituted among Men.
Cecilia M. Kenyon, writing on the philosophy of the Declaration, has raised some questions about the logical structure of an argument that holds that the rights enumerated in the Declaration can be secured to all men equally. With respect to the right to liberty, for example, Kenyon has inquired, If the liberty asserted by one man should come into conflict with the liberty asserted by another, how could the rights of both men be secured? What criterion could one devise to decide which assertion of natural right was the more valid? The inconsistencies suggested by these questions are in fact specious. The rights to which Jefferson refersand here he clearly follows Lockeare to be understood not as mandating individual or collective acts of any kind but rather as restraining men from acting in certain ways. Or, put more simply, my right to something, say my liberty, entails only prohibitions on others and not positive commands. To the extent that I am free, I am let alone, not forced, required, commanded by others to do (or not to do) something that I can, am able, have the capacity to do. The only boundaries limiting the actions of other men are those prohibitions that extend around my liberty. Thus understood, there are no conditions under which the liberty of one man could conflict with the liberty of another, since it is perfectly consistent that neither be constrained to act (or not to act) in any noninvasive way. It follows that all voluntary arrangements are consistent with the liberty of all men.
Nor is there any substance to Kenyons charge that the three rights [enumerated in the Declaration] can sometimes be in conflict with each other, since each of these rights has as its basis a similar negative conception, prohibiting both public and private interference with mens actions. Thus, Kenyons claim that happiness as an individual right was new, and it seems even more amenable to subjective interpretation than either liberty or life completely misconstrues the nature of rights as Jefferson understood them. We would do well to emphasize that Jefferson did not claim that men had a right to happiness but that they had an inalienable right to pursue it. While it might be the case that one mans happiness conflicts with the happiness of another, it by means follows that ones rightproperly understoodto pursue happiness involves trespassing upon the same right in others. To affirm an inalienable right of all men to pursue their own happiness free from the interference of others is to assert no less objective a right than the right to ones life. The right to ones life does not entail that one will be free from fatal microorganisms nor that it is incumbent on others to do all they can to prevent one from dying, but only that they not actively intervene to kill you. Even under circumstances where two people are confronted with conditions such that one mans life is contingent on the others death, neither may raise his hand against the other under pain of violating this right, despite the fact that both will die.
That Jefferson understood the rights he enumerated as impelling others, either individually or collectively, to positive actions lies at the root of a whole series of misinterpretations of the meaning of the Declaration long preceding the appearance of Kenyons article. Thus, much as been made by certain commentators of the fact that Jefferson affirmed a right to pursue happiness rather than the more customary right to property, which Locke and the other Whig radicals had made central to their theory of inalienable rights. Gilbert Chinard, for example, viewed Jeffersons choice of language as asserting a new principle of government, one that placed a positive obligation on the civil magistrate to ensure the happiness of his subjects. I do not believe, Chinard wrote, that any other State paper in any nation had ever proclaimed so emphatically and with such finality that one of the essential functions of government is to make men happy.
Arthur M. Schlesinger later offered a similar interpretation of Jeffersons use of the pursuit of happiness, basing his argument on references in the revolutionary literature (particularly John Adams Thoughts on Government to the notion that the happiness of the subjects is the end of government. In short, Schlesinger concluded, none of these spokesmen of the American cause thought of happiness as something a people were entitled simply to strive for but as something that was theirs by natural right. Charles M. Wiltse, following Chinard and Schlesinger, translates Jeffersons substitution similarly. The happiness principle, he writes, is undoubtedly the most significant feature of Jeffersons theory of rights, for it raises government above the mere negative function of securing the individual against the encroachments of others. By recognizing a right to the pursuit of happiness, the state is committed to aid its citizens in the constructive task of obtaining their desires, whatever they may be.
The political naiveté of this view of rights and government is nothing short of breathtaking. If we cannot fulfill our desires without the constructive aid of others, that aid can only take the form of resources that we lack. But the resources necessary to aid us in fulfilling our desires can come only from others who currently possess those resources. We are thus confronted with a situation where we are all entitled by right to more resources than exist and to a state that has no limits in determining who will attain happiness and who will not.
In so representing the thrust of the Declarations argument, Chinard, Schlesinger, and Wiltse among others, have failed to grasp the nature of the rights to which Jefferson refers. The Declaration describes these rights as belonging to all men by virtue of their being men, and they unmistakably precede the establishment of any political authority. Therefore, the conditions under which these rights may be exercised cannot be contingent on the actions of government; they cannot be understood as imposing a set of positive commands on others. Radical natural-law theorists, and especially Locke, whose work formed the basis of the political philosophy contained in the Declaration, held that the ends of civil government limited the extent of political authority. When men consented to the creation of that authority, they transferred only those original rights as were necessary to achieve those specific ends. A right that is inalienable cannot be so transferred and it is among these rights that Jefferson includes the pursuit of happiness. Not only does the right to pursue happiness, then, owe its existence to a source higher than that of any government, but its exercise must in some crucial sense be separable and distinct from any action of government.
Much confusion surrounding what Jefferson meant when he coupled the notion of happiness with his theory of rights could be avoided if careful attention were paid to the Declarations language. The functions of governments are clearly stipulated. Although the origins of civil authority lie in the welfare of its subjects, its duties are circumscribed to that consonant with the purposes for which it was creatednamely, the securing of those inalienable rights that all men possess. The end of government is neither to maximize happiness nor to ensure that men attain happiness, but to provide the framework in which each person may pursue his own happiness as he individually sees fit. To endow the term pursuit of happiness with tortured meaningsas Schlesinger does when he suggests that it be understood to signify the practice of happiness, as in the pursuit of lawdoes an injustice to Jeffersons skill as a lucid prose stylist. Nor does it contravene the Declarations assertion that the pursuit of happiness is a personal right. It is no less a distortion of the philosophy underlying the Declaration to claim that when Jefferson stipulated a right to pursue happiness, his purpose was that of asserting a scientific law, that all men cannot help but pursue happiness. The inclusion of this phrase in the Declaration, Garry Wills has claimed, reflects Jeffersons intention to state scientific law in the human areanatural law as human right. Not only is this reading incompatible with Willss erroneous conclusion that the document makes happiness a hard political test of any reigns very legitimacy, but it totally perverts the logical structure of the Declaration.
We must still confront the question of why Jefferson chose to employ the term pursuit of happiness in his list of inalienable rights instead of the more usual property. It is almost certainly the case that Jefferson was familiar withand possibly had before hima copy of George Masons Virginia Declaration of Rights when he composed the Declaration of Independence. Julian Boyd notes that Masons draft was reprinted in the Pennsylvania Evening Post of 6 June and again in the Pennsylvania Gazette of 12 June, the day following Jeffersons appointment to a congressional committee whose function it was to compose a declaration justifying independence. The similarities between the two documents strongly suggests that Jeffersons formulation of the Declarations preamble owed much to Masons document and particularly to its opening paragraph. Mason wrote:
All men are born equally free and independant, and have certain inherent Rights, of which they cannot, by any Compact, deprive or divest their Posterity; among which are the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety.
It seems probable that Jefferson, who was as familiar with this view of inherent rights as was Mason and who espoused it with no less fervor, decided to compress the notion of a right comprising the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety into a more concise right to pursue happiness. The right to pursue ones happiness does not, nor was it meant to, preclude the right to acquire, maintain, or transfer property, whichin any of its specific formsis alienable by consent. When Jefferson wrote of an inalienable right to the pursuit of happiness, he was asserting a broader right that guaranteed to all men the freedom both to choose the form their own happiness would take and to seek to attain that happiness as they saw fit. The right to pursue ones happiness is inclusive of a natural right to the products of ones labor, just as the right to pursue the means to certain ends is implied by a right to pursue those ends. By substituting the words pursuit of happiness, Jefferson was in no way disavowing a natural right to property, as Locke and the other Whig theorists understood the term.
Certain critics, antagonistic to the concept of property rights, have insisted on reading into Jeffersons words an outright rejection of the notion of private property as an indefeasible right. Thus, Vernon L. Parrington concluded that the substitution of pursuit of happiness for property marks a complete break with the Whiggish doctrine of property rights that Locke bequeathed to the English middle class, and the substitution that gave to the document the note of idealism which was to make its appeal so perennially human and vital. That Parrington did not find the concept of a right to property human and vital, however, is not to suggest that it was not so regarded by Jefferson and the other patriots caught up in the revolutionary struggle. Jeffersons own views on the question are plainly set forth in a letter to Dupont de Nemours in 1816, in which he wrote that a right to property is founded on our natural wants, in the means with which we are endowed to satisfy these wants, and the right to what we acquire by those means without violating the similar rights of other sensible beings. And, with respect to the relation between government and the individuals right to liberty and to the product of his labors, Jefferson remarked in his first inaugural address:
Still one thing more, fellow citizensa wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise to regulate their own pursuits of industry and improvement, and shall not take from the month of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.
This sentiment epitomizes the philosophy that Jefferson had affirmed in the Declaration. Although the documents preamble underwent a series of changes between the time Jefferson completed his original draftbefore he submitted it to the other members of the drafting committeeand its final adoption by Congress, nothing of critical philosophical importance was altered. Carl L. Becker has succeeded in reconstructing Jeffersons basic text by comparing his Rough Draft, which contains a whole series of corrections and emendations made at all stages of the documents evolution, with copies of the Declaration as it read at several points before its final adoption. The critical portion of the preamble, as Jefferson originally wrote it, reads
We hold these truths to be sacred & undeniable; that all men are created equal and independent, that from that equal creation they derive rights inherent and inalienable, among which are the preservation of life, & liberty, & the pursuit of happiness; that to secure these ends, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government shall become destructive of these ends, it is the right of the people to alter or abolish it, & to institute new government, laying its foundations on such principles & organizing its powers in such form, as to them shall seem most likely to effect their safety & happiness.
With reference to Jeffersons original wording, Morton White argues that the change from ends to rights in the documents clause respecting what it is that governments are to secure (the preservation of life, & liberty, & the pursuit of happiness) marks a fundamental philosophical shift in the Declarations statement concerning the purpose of government. In the context here used, White contended, Jefferson could have meant only that the functions of government were more positive and far-reaching than those narrowly consistent with the preservation of natural rights. Whites analysis rests on interpreting the word secure in secure these ends to mean attain rather than guard. White acknowledges that the change in wording, from ends to rights, was made by Jefferson himself before the document was submitted to Congress for its consideration. But in doing so, White concludes, Jefferson altered the Declarations political philosophy so as to give the impression that governments are instituted to secure in the sense of guard certain rights rather than that they are instituted to secure in the sense of attain certain ends. This change, White suggests, reflected Jeffersons ambiguity respecting whether the end of government is merely to protect certain rights or whether government was to go further and encourage mans exercise of those rights.
As interesting as Whites analysis is, there are several problems with accepting his conclusion that when Jefferson drafted the Declaration two warring philosophical souls dwelt within [his] breast. Jefferson himself appears to have regarded the changes made in the draft before its submission to Congress as of minor importance only; in writing of these alterations to James Madison some years later, he referred to them as merely verbal. Indeed, there is no evidence that Jefferson perceived that there was any important philosophical difference between his original reference to ends and his subsequent use of rights. Nor is there any compelling reason to accept Whites inference that when Jefferson wrote to secure these ends he meant this term to signify that the function of government was to actively aid and abet men in attaining ends proposed by God. In fact, when Jefferson asserted that governments are instituted among men to secure these ends, namely, the preservation of life and liberty, and the pursuit of happiness, he probably meant no more than did Locke, who announced in the Second Treatise that the great end of mens putting themselves under government is the preservation of their lives, liberties, and estates.
The change from ends to rights was not the only revision that either Jefferson or the other members of the drafting committee made to the basic text before the document was reported to Congress on 28 June. Boyd has calculated that the Rough Draft, as finally submitted, contained forty-seven alterations. Some of these were of no importance, such as the deletion of a partially written word, while others were made for what appear to be purely stylistic purposes. In addition, Jefferson supplemented his bill of indictment against the Crown by appending three new charges. Of these revisions and additions, only seven are apparently in a hand other than Jeffersons; two would seem to have been made by Adams, and the others by Franklin. It appears probable that all the changes occurring in the Declarations philosophical preamble as reported to Congress were Jeffersons.
This discussion of rights and the Declaration need not linger on the list of grievances, which constitutes the major portion of the Declaration. It should be noted, however, that the charges specified in the document were leveled not against the Parliament of Great Britain, but against the Crown. The American conception of the constitutional status of the colonies within the British empire viewed them as linked to Great Britain only in the sense that they acknowledged a common monarch. The Parliament of Great Britain had no more legal authority over the various provinces of British North America than the House of Burgesses of Virginia had over Great Britain or over any other dominion owing allegiance to George III. By mid-1776, this view had become commonplace among Americans. They regarded their fealty to the King as one that had originally been assumed voluntarilythat is, by the consent of the peopleand they thus felt free to retract it at their pleasure. The colonists right to rebel against tyrannical government was predicated not only on the privileges that they possessed as British subjects but on the natural rights that they, in company with all men at all times, possessed. And the injuries and usurpations under which the colonists suffered, as enumerated in the Declarations indictment, were not simply trespasses on the privileges traditionally accorded Englishmen by their sovereign, but violations of the colonists fundamental indefeasible rights as human beings. This view was adumbrated in Jeffersons A Summary View of the Rights of British America in 1774, and in his draft of the Declaration of the Causes and Necessity of Taking Up Arms, composed at the beginning of July 1775.
There is a body of scholarly opinion that minimizes the centrality and importance of the Declaration and contends that the claims made by the American colonists in their controversies with Great Britain were consistently framed in the language of English rights and that arguments based on the authority of natural law were irrelevant to the debate. For example, one of the most prolific legal historians of the period, John Philip Reid, claims unequivocally that the revolutionary controversy was concerned with positive constitutional rights, not abstract natural rights, and that at every important occasion when the American whig leadership gathered to claim rights and state grievances, nature was rejected as the sole authority for rights. But even Reids somewhat extravagant assertions concede that the colonists did in fact often appeal to the law of nature as an alternative authority for the rights they asserted. Nor does there seem much doubt, despite Reids reservations, that, as open rebellion with Great Britain approached, the colonists increasingly resorted to arguments based not on the prerogatives peculiar to Englishmen but rather on mans natural rights. Indeed, Reid himself offers several examples in which the colonial position is couched in terms that are unambiguously grounded on the law of nature. Thus, among the resolutions of the freeholders of Granville County in 1774 is the following: Resolved. That those absolute rights we are entitled to as men, by the immutable Laws of Nature, are antecedent to all social and relative duties whatsoever. Similarly, the Boston Declaration of 1772, which invokes the eternal and immutable Laws of God and nature and whose introductory comments read like a prcis of Lockes Treatises of Government, provides that 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. And, with particular reference to the protections afforded Americans by the several colonial charters, James Otis observed: Should the charter privileges of the Colonists be disregarded or revoked, there are natural, inherent, and inseparable rights as men and citizens that would remain.
Finally, the language of the Declaration of Independence would seem to offer overwhelming evidence of the pervasiveness of the Lockean notion of rights among the colonists. There is no reason to question Jeffersons claim, when writing some years later about the political principles contained in the Declaration, that, with respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water; all American whigs thought alike on these subjects. As we have seen, the truth of Jeffersons assertion is vouchsafed by the fact that several states, as part of their new constitutions, enacted declarations of rights explicitly couched in Lockean language by the end of 1776, particularly Virginia and Pennsylvania.
I have already indicated that the constraints of space prevent detailed discussion of the grievances contained in the Declaration. However, some mention must be made of certain charges in Jeffersons bill of indictment. Sometime in late May or early June 1776 Jefferson had written a draft of a proposed constitution for Virginia, the preamble to which enumerated a series of injuries suffered by the colonies at the hands of the British Crown. The basic text of the Declaration contains eighteen grievances, one of which is divided into eight distinct counts, making twenty-five charges in all. Of these twenty were taken almost verbatim from the earlier document and, with two exceptions, appear in the same order. The sequence and language of the charges enumerated in the Declaration, Boyd observed, appear to leave no question that Jefferson had the text of his Preamble to the Virginia Constitution before him when he composed the grievances incorporated in the document.
Before submitting the draft of the Declaration to Congress, Jefferson added three new charges against George III, among them a censure of the Quebec Act of 1774, which extended the boundaries of Quebec to the Mississippi River in the west and southward to the Ohio River. The act further provided that legislative authority in the province be vested solely in a royally appointed council and granted to the British Parliament the power to levy all but purely local taxes. Finally, English civil law was abolished and the Anglican church disestablished. In their place, French civil law, which precluded the trial of civil cases by jury, was reinstituted and Roman Catholicism was reimposed as the established communion, one section of the bill expressly guaranteeing to the clergy the dues and rights they had earlier received under the French regime. This pernicious act, restoring many of the laws and religious privileges earlier imposed by an openly autocratic regime on a territory that would henceforth constitute the largest area of North America, was regarded with particular loathing by the colonists, who saw in it a direct threat to their own political and civil institutions.
By far the most significant addition to Jeffersons charges was his denunciation of slavery. At some point between the completion of his original text and submission of the draft of the Declaration to Congress, Jefferson added the following indictment of George III:
He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. This piratical warfare, the opprobrium of infidel powers, is the warfare of the Christian king of Great Britain. Determined to keep open a market where men should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce.
Becker, among others, has suggested that there was something hypocritical in the charge, which, like the others, is couched in the form of an indictment of the Crown. Certainly it is true that the subsequent history of the slave trade and of slavery itself in the United States points to more villainy on this side of the Atlantic than in Great Britain. But there is a complex of irrefragable evidence pointing to the complicity of the British government in perpetuating this satanic institution. Edward Dumbauld notes that on at least six occasions colonial acts imposing prohibitively high duties on the slave trade were disallowed by the king-in-council, thus permitting an unusually lucrative British market to flourish unhindered. Of far greater importance, however, is the fact that a document proclaiming the inalienable natural rights of all menand this probably accounts for why men is capitalized in Jeffersons draftshould have vigorously condemned slavery as inimical to the principles upon which the new nation was to rest. The excision of this charge by Congress cannot but have impoverished the document, just as the institution itself was to impoverish the republic until its bloody repudiation ninety years later.
On 28 June, Jefferson and the other members of the committee reported the amended draft of the Declaration to Congress. Jefferson is known to have consulted with Adams and Franklin, both of whom had made minor revisions to the language of the document, after which the draft was submitted to the whole committee. There is, unfortunately, no way to determine whether any of the alterations and additions that appear in Jeffersons own handwriting were the result of suggestions made by the other members or were the product of Jeffersons own judgment; nor, indeed, is it possible to determine whether these changes were made before or after Sherman and Livingston were first shown Jeffersons draft. Given the style of the revisions and Jeffersons later recounting of the events of this period, it is not unlikely that at least the greater part of the emendations made in the basic text were Jeffersons alone.
On 2 July the Congress, at the outset meeting in Committee of the Whole, adopted the Lee resolution, whereby the American colonies declared themselves to be free and independent states, absolved from all allegiance to the British Crown. The vote on the resolution would have been unanimous if the New York delegation had not felt compelled to abstain, having received no reply from the provincial congress to their earlier request for instructions. On 1 July a preliminary vote showed only nine colonies prepared to support independence. Both South Carolina and Pennsylvania voted against the Lee resolution, New York abstained, and the two delegates from Delaware then present in Philadelphia were divided on the issue. By the next day, however, a dramatic shift had occurred. The South Carolina delegation, led by Edward Rutledge, joined the pro-independence faction for the sake of intercolonial unity, and the Delaware delegation was enlarged by the last-minute arrival of Caesar Rodney, hastily called from Dover to cast that colonys tie-breaking vote in favor of independence. Finally, Pennsylvanias delegation, which had opposed the Lee resolution by a vote of four to three on 1 July, moved into the independence camp when two opponents, John Dickinson and Robert Morris, deliberately absented themselves on the following day. Thus, on 2 July, with twelve delegations voting in favor and one abstaining, the united colonies declared their independence from Great Britain and so became free states.
Following passage of the Lee resolution, the Congress immediately turned its attention to consideration of the Declaration, whose function was to justify the decision just reached. Inasmuch as the debate on the Declaration was undertaken by Congress again meeting in Committee of the Whole, the Rough and Corrected Journals are silent on the nature of the discussion that took place. It is known that a number of alterations and deletions were made, many for purely stylistic purposes. There appears to have been no attempt to tamper with the Declarations theory of government, so eloquently expressed in Jeffersons preamble. Indeed, the view of government there affirmed was the product of legal and political principles embraced by all the revolutionaries, as it emerged in the writing of natural-rights theorists from Hugo Grotius and Samuel Pufendorf, through Locke and the other Whig radicals, to the continental writers inspired by Locke, particularly Jean Jacques Burlamaqui. Congress made only two minor changes in the phrasing of Jeffersons philosophical preamble: inherent and unalienable rights was altered to certain unalienable rights, and the words begun at a distinguished period, and were deleted from Jeffersons more wordy But when a long train of abuses & usurpations, begun at a distinguished period, & pursuing invariably the same Object evinces a design to reduce them under absolute Despotism.
The Congress did not stop at minor revisions, however. It excised two major passages from the draft as submitted, among them, as already noted, Jeffersons condemnation of slavery and the slave trade. The second major deletion involved Jeffersons final paragraph, in which he denounced the British electorate for its complicity in the abuses perpetrated by the British government in North America. As the author of the Declaration, Jefferson was naturally disheartened that Congress should have seen fit to use so heavy a hand in editing a document that had been framed with such care. He appears to have been particularly offended at the deletion of the paragraph on slavery and his indictment of the British public. With respect to these excisions, he observed in his notes on the proceedings of Congress:
The pusillanimous idea that we had friends in England worth keeping terms with, still haunted the minds of many. For this reason those passages which conveyed censures on the people of England were struck out, lest they should give them offence. The clause too, reprobating the enslaving the inhabitants of Africa, was struck out in complaisance to South Carolina& Georgia, who had never attempted to restrain the importation of slaves, and who on the contrary still wished to continue it. Our Northern brethren also I believe felt a little tender under those censures; for tho their people have very few slaves themselves yet they had been very considerable carriers of them to others.
Jefferson was predictably convinced that his final draft was superior to the Declaration as Congress amended it, and he sent copies of the text as he submitted it to several friends, both while it was being altered by Congress and soon afterward. But, with the exception of its deletion of his condemnation of the slave trade, the reader is compelled to agree with Boyd that it is difficult to point out a passage in the Declaration, great as it was, that was not improved by [Congresss] attention. That a public body would reduce rather than increase the number of words in a political document is in itself a remarkable testimony to their sagacity and ability to express themselves. Certainly the final paragraph, considered as parliamentary practice, as political principle, and as literature was greatly improved by the changes of Congress.
On the evening of 4 July the Declaration, as amended, was reported by the Committee of the Whole and duly approved by the Congress without dissent. The document was then ordered authenticated and printed, at which point John Hancock signed the authenticated copy by Order and in Behalf of Congress. At that moment, it is reported, the bell atop the State House, where the Congress was then meeting, began to ring to herald the event. The bell itself is inscribed with the following words from Leviticus: Proclaim liberty throughout the land unto all the inhabitants thereof. No nationno kingdom or principalitywas born with greater majesty than was the United States, whose founding charter proclaimed to the world the revolutionary doctrine that all men, no matter how base their status, were endowed with God-given rights, upon which governments trespassed only at the gravest peril.
The conception of rights embraced by the American revolutionary theorists and reflected in the Declaration conceived of them as eternal and immutable, as antedating the establishment of all political authority, and as belonging to all men by virtue of their humanity alone. Since their exercise does not conflict with others rights, this conception logically entails the strictest limits on the actions of government, a notion that shaped much of early American political philosophy. The gradual erosion of this understanding of rights and its replacement with the view that individual rights conflict with one another and that their exercise requires that others be impelled to act in certain ways, entails a very different conception of government, one in which the political authority is required to intervene actively, both to mediate between the rights of citizens and to provide the means whereby certain rights can be realized. It is important, when examining the way rights were understood by the American revolutionaries that this second, more modern, and somewhat vulgar conception is not confused with the way the eighteenth century understood the term, as so often happens. Fortunately, this newer notion of rights has not totally supplanted its eighteenth-century rival, which still serves to animate citizens against the arbitrary incursions of a despotic government. We all owe a great deal to seventeenth- and eighteenth-century political theory and particularly to radical Whig thought for providing a theory of rights and of government consistent with individual autonomy and freedom. While so many of the insights that the eighteenth century has furnished us have been abandoned, we still remain indebted for a conception of rights that places the individual above the state and that makes the ultimate test of government whether those rights are protected.
John Adams had expected that the new nation would commemorate 2 July, the date on which Lees resolution of independence passed Congress, as its independence day but through a curious anomaly 4 July received the honor. The date that Americans annually celebrate is not the anniversary of the day on which independence from Great Britain was first declared but, rather, the anniversary of the day on which the Congress proclaimed a universal theory of government based on the inalienable rights of man. It is altogether fitting to the American spirit that we commemorate not merely a political act but an ideological one.
On 9 July the New York provincial congress, sitting in White Plains, voted unanimously to ratify the Declaration. On 19 July, four days after New Yorks acquiescence had been read to the Congress, it was ordered that the Declaration be engrossed on parchment and that its title be altered to The Unanimous Declaration of the 13 United States of America. Finally, on 2 August, the engrossed copy was signed by the members of the Continental Congress. Immediately after its passage, copies of the Declaration had been dispatched to all the colonies, where it was read with suitable pomp and celebration before approving crowds; for this charter upon which the new republic was founded gave voice to the fact that the war in which the colonists were then engaged was in reality the most principled act of rebellion against despotism of which mankind has record.
This essay borrows from two previously published articles: The Declaration of Independence, in Jack P. Greene, ed., Encyclopedia of American Political History: Studies of the Principal Movements and Ideas, 4 vols. (New York; Charles Scribners Sons, 1989): I: 45565; and Rights, in Jack P. Greene and J. R. Pole, eds., in Blackwells Encyclopedia of the American Revolution (Cambridge, Mass.: Basil Blackwell, 1991): 68287.
1. The Continental Congress had adopted the Declaration and Resolves on 14 October 1774. The document denounced the Coercive Acts and the Quebec Act as offenses against justice and as unconstitutional and condemned as violations the various revenue acts passed by Parliament since 1763. It further characterized the extension of vice admiralty courts, the dissolution of colonial assemblies, and the quartering of British troops in colonial towns in peacetime as violations of the natural and prescriptive rights of Englishmen. The Declaration was laid before Parliament on 19 January, at which time William Pitt, Earl of Chatham, moved that British troops be immediately withdrawn from Boston. Notwithstanding the fact that the vote against this resolution was substantial, Pitt again proposed a reconciliation plan on 1 February, which among other things called for British recognition of the Continental Congress and a pledge that no revenue measure would be levied on the American colonies without the approval of the provincial assemblies. This measure was also defeated by the Lords.
2. Each colonial delegation to the Continental Congress was given one vote, determined by the majority of its members. John Adams, Samuel Adams, and Elbridge Gerry, who were strong supporters of independence, were thus able to outvote John Hancock and Robert Treat Paine and to control the vote of Massachusetts.
3. Peter Force, American Archives, 4th Series, 6 vols. (Washington, D.C.: Under authority of Congress, 18371846): VI: 13; quoted in Edward Dumbauld, The Declaration of Independence (Norman, Okla.: University of Oklahoma Press, 1950): 11. In the event, George made treaties with the principalities of Hesse-Cassel, Brunswick, and Hanau, whereby they agreed to furnish troops for Britains war in America.
7. Philip S. Foner, Introduction: Thomas PaineWorld Citizen and Democrat, in Foner, ed., Life and Writings of Paine, xiv. Paine himself noted that it sold 120,000 copies within three months of its appearance. Editors Introduction, in Thomas Paine, Common Sense, Isaac Kramnick, ed. (Hammondsworth, Middlesex: Penguin Books, 1976): 8.
11. Lockes influence on Jeffersons Declaration in particular and on American revolutionary thought in general has been called into question by Aldo Tassi, The Political Philosophy of the American Revolution (Washington, D.C.: University Press of America, 1978), and Garry Wills, Jeffersons Declaration of Independence (Garden City, N.Y.: Doubleday, 1978). Tassi maintains that a careful examination of [the] alleged connections between Lockes political theory and the American Revolution reveals that they are based on a tissue of unfounded assumptions (p. 3) and that American political thought during this period was in fact shaped by what appears to be a Rousseau-like concern for political community. Wills contends that Jeffersons Declaration owes little if anything to Lockes political views but can be best analyzed as reflecting the moral and political philosophy of the Scottish Enlightenment. There is no historical warrant for either of these views.
12. David Lundberg and Henry F. May, The Enlightened Reader in America, American Quarterly, 28 (1976): 26293. For the relation between Lockes political thought and that of Trenchard and Gordon, see Ronald Hamowy, Catos Letters, John Locke, and the Republican Paradigm, The History of Political Thought XI (1990): 27394.
14. Peter Laslett, Two Treatises of Government and the Revolution of 1688, in John Locke, Two Treatises of Government, Peter Laslett, ed. (Cambridge Texts in the History of Political Thought; Cambridge: Cambridge University Press, 1988): 47.
16. Cecilia M. Kenyon, The Declaration of Independence, in Fundamental Testaments of the American Revolution [Papers Presented Before the Second Symposium, May 10 and 11, 1973] (Washington, D.C.: Library of Congress, 1973): 37. The notion that rights are almost invariably in conflict arises when one includes in an enumeration of rights those that impose obligations on others and afflicts most contemporary discussions of the subject. This is in large part due to the fact that politicians and others who have vulgarized the language of political theory have found it to their ideological advantage to encourage the view that such conflicts are an invariable part of political life. For once it is conceded that rights, of necessity, compete, there can be only one referee, and that is the modern democratic state.
19. Adams there maintained that the happiness of society is the end of government. John Adams, Thoughts on Government: Applicable to the Present State of the American Colonies: In a Letter from a Gentleman to his Friend (Philadelphia: Printed for John Dunlap, 1776), quoted in Charles Francis Adams, Works of John Adams, IV, 193.
20. Arthur M. Schlesinger, The Lost Meaning of The Pursuit of Happiness, William and Mary Quarterly, 3rd Series, XXI (1964): 326. Schlesinger offers no evidence for this conclusion nor does it follow from the four examples he offers. Indeed, the essay is so slightit barely runs to two and a half pagesthat one is tempted to conclude that it would not have seen print, at least not in this form, were it not for the reputation of its author.
24. Pauline Maier is unequivocal on this score. Jeffersonperhaps with some help from Franklinmade the same kind of careful editorial adjustments in the opening lines [of the preamble], which, as an examination of successive drafts of the document reveals, were based upon the first three provisions of the Mason/committee draft of Virginias Declaration of Rights. Pauline Maier, American Scripture: Making the Declaration of Independence (New York: Alfred A. Knopf, 1997): 133.
26. George Mason, First Draft of the Virginia Declaration of Rights, Robert A. Rutland, ed., 3 vols. (Chapel Hill, N.C.: University of North Carolina Press, 1970): I, 277.20 John Adams noted in a Diary entry made in 1779, that the Pennsylvania Declaration of Rights, adopted shortly after the Virginia Convention took action on Masons draft, was taken almost verbatim from that of Virginia. Article One of the Pennsylvania Declaration reads:
That all men are born equally free and independent, and have certain natural, inherent and inalienable rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property and pursuing and obtaining happiness and safety.
Compare Article One of the Massachusetts Declaration of Rights, drafted by John Adams and adopted by the Massachusetts Constitutional Convention in 1780:
All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. (The Pennsylvania Declaration of Rights, 1776, and The Massachusetts Declaration of Rights, 1780, in Bernard Schwartz, ed., The Roots of the Bill of Rights, 5 vols. (New York: Chelsea House Publishers, 1980): II: 264, 340.
27. The distinction between an inalienable right to property and the fact that specific property can be alienated appears to have caused hopeless confusion in Willss analysis of the Declaration and in that of Allen Jayne (Jeffersons Declaration of Independence: Origins, Philosophy, and Theology (Lexington: University Press of Kentucky, 1998). Jayne uses the fact that, since Henry Home, Lord Kames, had clearly shown that it is possible to alienate property in the form of movable goods and land, and inasmuch as Kames work was well known to Jefferson, Jefferson was forced to substitute an inalienable right to pursue happiness for an inalienable right to property. Indeed, according to Jayne, the change further reflects the substantial influence Kames had on shaping Jeffersons political thinking. (Jayne, Jeffersons Declaration of Independence,12026.) Both Wills and Jayne suffer from the common error of reading the Declaration of Independence as if it were an essay in moral philosophy rather than a document of political principles. The two are related, but they are by no means identical.
29. Jefferson to Pierre Samuel Dupont de Nemours, 24 April 1816, Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson, 20 vols. (Washington, D.C.: Thomas Jefferson Memorial Association, 19031905): XIV: 490.
31. The draft is printed in Carl L. Becker, The Declaration of Independence: A Study in the History of Political Ideas (New York: Random House, 1922): 142. A holographic version of this draft appears in Boyd, Declaration of Independence, 6771.
35. Jefferson to James Madison, 30 August 1823, in Ford, ed., Writings, 269. Jeffersons letter to Madison was written in response to charges by John Adams that the ideas and language of the Declaration were far from new. Adams had written Timothy Pickering some years after the Declaration had been adopted, pointing out its lack of originality. As you justly observe, he notes, there is not an idea in it, but what had been hackneyd in Congress for two years before. The substance of it is contained in the Declaration of rights and the violation of those rights, in the Journal of Congress in 1774. Indeed, the essence of it is contained in a pamphlet, voted and printed by the Town of Boston before the first Congress met, composed by James Otis, as I suppose-in one of his lucid intervals, and pruned and polished by Sam Adams. (Adams to Timothy Pickering, 6 August 1822, in Charles Francis Adams, ed., The Works of John Adams, II: 514). At the Fourth of July celebrations at Salem, Massachusetts, in 1823, Pickering quoted from Adamss letter deprecating Jeffersons contributions, to which Jefferson felt obligated to respond, which he did in a letter to James Madison. The letter in part reads: Pickerings observations, and Mr. Adams in addition, that it contained no new ideas, that it is a common place compilation, its sentiments hacknied in Congress for two years before, and its essence contained in Otiss pamphlet may all be true. Of that I am not the judge. Richard H. Lee charged it as copied from Lockes treatise on government. Otiss pamphlet I never saw & whether I had gathered my ideas from reading or reflection I do not know. I know only that I turned to neither book or pamphlet while writing it. I did not consider it as any part of my charge to invent new ideas altogether & to offer no sentiment which had ever been expressed before. Jefferson to James Madison, 30 August 1823, in Ford, ed., Writings, 269.
38. See John Philip Reids four-volume study, Constitutional History of the American Revolution: Volume I: The Authority of Rights (Madison, Wisc.: University of Wisconsin Press, 1986); Volume II: The Authority to Tax (Madison, Wisc.: University of Wisconsin Press, 1987); Volume III: The Authority to Legislate (Madison, Wisc.: University of Wisconsin Press, 1991); and Volume IV: The Authority of Law (Madison, Wisc.: University of Wisconsin Press, 1993).
43. Much has been made of the absence of any theoretical preamble to many of the colonial charters that were drafted in the early history of British North America and the fact that the protections that these charters afforded were regularly couched in terms of the traditional prerogatives accorded Englishmen rather than reflecting a conception of rights derivable from nature. According to Reid, the Continental Congresss Declaration of Independence was in this respect idiosyncratic. But this is to mistake the purpose of these charters, which was to provide a frame of government for each of the colonies. To the extent that they set limits to the powers of the colonial governments, it is to be expected that these constitutional charters would concern themselves primarily with the procedural protections accorded the colonists as Englishmen living overseas. Even the Fundamental Constitution of Carolina, which provides that no person whatsoever shall disturb, molest, or persecute another for his speculative opinions in religion, or his way of worship, (The Fundamental Constitution of Carolina, 1669, in Bernard Schwartz, ed., Roots of the Bill of Rights, I: 123) a protection that goes far beyond any then existing in England, does not suggest whence this right derives. It is only because its author is John Locke that we know that its source is in the law of nature itself. Indeed, many of the protections mentioned in the various charters at the least suggest that they are included by virtue of the colonists humanity and were derived from God or nature, and not from the state. Even with respect to the provisions that dealt with the specific powers granted the various colonial governments, it is apparent that the rights that were subject to legislative construction, such as the right to property, could be circumscribed only under the strictest conditions. Thus, the Massachusetts Body of Liberties specified that no mans goods or estaite shall be taken away from him, nor any way indammaged under coulor of law or Countenance of Authoritie, unless it be by vertue or equitie of some expresse law of the Country waranting the same, established by a generall Court and sufficiently published, or in case of the defect of a law in any particular case by the word of god. (Massachusetts Body of Liberties, 1641, in Bernard Schwartz, ed., Roots of the Bill of Rights, I: 72).
46. [There had been] numerous occasions when attempts by the Colonies to abolish the slave trade had been repeatedly defeated by his majestys negative. Imposition of prohibitive duties on the importation of slaves ran counter to the Kings policy of protecting a profitable British trade from legislative interference. Though the Virginia House of Burgesses, on April 1, 1772, petitioned the King to permit the Governor to assent to laws which would check so very pernicious a Commerce, the British government refused to relax its instructions. These forbade laws detrimental to British commercial interests, and specifically commanded that no Duty be laid on any Slave Imported payable by the Importer. The Virginia law of April 11, 1772, was disallowed in England, just as earlier efforts to curb the slave trade, made by Virginia and by other colonies, had met the same fate. Dumbauld, Declaration of Independence, 89.